[Federal Register Volume 75, Number 152 (Monday, August 9, 2010)]
[Rules and Regulations]
[Pages 47905-48177]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-17818]
[[Page 47905]]
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Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1926
Cranes and Derricks in Construction; Final Rule
Federal Register / Vol. 75, No. 152 / Monday, August 9, 2010 / Rules
and Regulations
[[Page 47906]]
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1926
[Docket ID-OSHA-2007-0066]
RIN 1218-AC01
Cranes and Derricks in Construction
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Final rule.
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SUMMARY: OSHA is revising the Cranes and Derricks Standard and related
sections of the Construction Standard to update and specify industry
work practices necessary to protect employees during the use of cranes
and derricks in construction. This final standard also addresses
advances in the designs of cranes and derricks, related hazards, and
the qualifications of employees needed to operate them safely. Under
this final rule, employers must determine whether the ground is
sufficient to support the anticipated weight of hoisting equipment and
associated loads. The employer is then required to assess hazards
within the work zone that would affect the safe operation of hoisting
equipment, such as those of power lines and objects or personnel that
would be within the work zone or swing radius of the hoisting
equipment. Finally, the employer is required to ensure that the
equipment is in safe operating condition via required inspections and
that employees in the work zone are trained to recognize hazards
associated with the use of the equipment and any related duties that
they are assigned to perform.
DATES: This final rule will become effective November 8, 2010.
The incorporation by reference of specific publications listed in
this final rule is approved by the Director of the Federal Register as
of November 8, 2010.
ADDRESSES: In accordance with 28 U.S.C. 2112(a)(2), the Agency
designates Joseph M. Woodward, Associate Solicitor of Labor for
Occupational Safety and Health, Office of the Solicitor, Room S-4004,
U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210, to receive petitions for review of the final rule.
FOR FURTHER INFORMATION CONTACT: General information and press
inquiries. Contact Ms. Jennifer Ashley, Director, Office of
Communications, OSHA, U.S. Department of Labor, Room N-3647, 200
Constitution Avenue, NW., Washington, DC 20210; telephone (202) 693-
1999 or fax (202) 693-1634.
Technical inquiries. Contact Mr. Garvin Branch,
Directorate of Construction, Room N-3468, OSHA, U.S. Department of
Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone
(202) 693-2020 or fax (202) 693-1689.
Copies of this Federal Register notice. Available from the
OSHA Office of Publications, Room N-3101, U.S. Department of Labor, 200
Constitution Avenue, NW., Washington DC 20210; telephone (202) 693-
1888.
Electronic copies of this notice. Go to OSHA's Web site
(http://www.osha.gov), and select ``Federal Register,'' ``Date of
Publication,'' and then ``2010.''
SUPPLEMENTARY INFORMATION: Availability of Incorporated Standards. The
standards published by the American National Standards Institute
(ANSI), the American Society of Mechanical Engineers (ASME), the
American Welding Society (AWS), the British Standards Institution
(BSI), the International Organization for Standardization (ISO), the
Power Crane and Shovel Association (PCSA), and the Society of
Automotive Engineers (SAE) required in subpart CC are incorporated by
reference into this subpart with the approval of the Director of the
Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce
any edition other than the editions specified in subpart CC, the
Occupational Safety and Health Administration (OSHA) must publish a
notice of change in the Federal Register and the material must be
available to the public.
All approved material is available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of this material at NARA, telephone 202-741-6030, or go
to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Also, the material is available for
inspection at any OSHA Regional Office or the OSHA Docket Office (U.S.
Department of Labor, 200 Constitution Avenue, NW., Room N-2625,
Washington, DC 20210; telephone 202-693-2350 (TTY number: 877-889-
5627)).
I. General
A. Table of Contents
The following Table of Contents identifies the major preamble
sections in this notice and the order in which they are presented:
I. General
A. Table of Contents
II. Background
A. History
B. The Cranes and Derricks Negotiated Rulemaking Advisory
Committee (C-DAC)
C. Hazards Associated with Cranes and Derricks in Construction
Work
III. The SBREFA Process
IV. Summary and Explanation of the Rule
V. Procedural Determinations
A. Legal Authority
B. Executive Summary of the Final Economic Analysis; Final
Regulatory Flexibility Analysis
C. OMB Review Under the Paperwork Reduction Act of 1995
D. Federalism
E. State-Plan States
F. Unfunded Mandates Reform Act
G. Applicability of Existing Consensus Standards
H. List of Subjects in 29 CFR Part 1926
V. Authority and Signature
VI. Amendments to Standards
II. Background
A. History
The Occupational Safety and Health Act of 1970 (84 Stat. 1590, 29
U.S.C. 651 et seq.) (the OSH Act) authorizes the Secretary of Labor to
adopt safety and health standards to reduce injuries and illnesses in
American workplaces. Pursuant to that authority, the Secretary adopted
a set of safety and health standards applicable to the construction
industry, 29 CFR part 1926. Initially, standards for the construction
industry were adopted under the Construction Safety Act, 40 U.S.C. 333.
Under the Construction Safety Act, those standards were limited to
employers engaged in Federally-financed or Federally-assisted
construction projects. The Secretary subsequently adopted them as OSHA
standards pursuant to Sec. 6(a) of the OSH Act, 29 U.S. C. 655(a),
which authorized the Secretary to adopt established Federal standards
as OSH Act standards within the first two years the OSH Act was
effective (see 36 FR 25232, Dec. 30, 1971). Subpart N of 29 CFR part
1926, entitled ``Cranes, Derricks, Hoists, Elevators, and Conveyors,''
was originally adopted through this process.
The section of subpart N of 29 CFR part 1926 that applied to cranes
and derricks was former Sec. 1926.550. That section relied heavily on
national consensus standards that were in effect in 1971, in some cases
incorporating the consensus standards by reference. For example, former
Sec. 1926.550(b)(2) required crawler, truck, and locomotive cranes to
meet applicable requirements for design, inspection, construction,
testing, maintenance, and operation prescribed in ANSI B30.5-1968,
``Crawler, Locomotive and Truck Cranes.'' Similarly, former Sec.
1926.550(e)
[[Page 47907]]
required derricks to meet applicable requirements for design,
construction, installation, inspection, testing, maintenance, and
operation prescribed in ANSI B30.6-1969, ``Derricks.'' Until today,
former Sec. 1926.550 was amended substantively only twice. In 1988,
former Sec. 1926.550(g) was added to establish clearly the conditions
under which employees on personnel platforms may be hoisted by cranes
and derricks (see 53 FR 29116, Aug. 2, 1988). In 1993, former Sec.
1926.550(a)(19) was added to require that all employees be kept clear
of lifted and suspended loads.
Considerable technological advances have been made since the 1971
OSHA standard was issued. For example, hydraulic cranes were rare at
that time, but are now prevalent. In addition, the construction
industry has updated the consensus standards on which the original OSHA
standard was based. For example, the industry consensus standard for
derricks was most recently updated in 2003, and that for crawler,
locomotive and truck cranes in 2007.
In recent years, a number of industry stakeholders asked the Agency
to update subpart N's cranes and derrick requirements. They were
concerned that accidents involving cranes and derricks continued to be
a significant cause of fatal and other serious injuries on construction
sites and believed that an updated standard was needed to address the
causes of these accidents and to reduce the number of accidents. They
emphasized that the considerable changes in both work processes and
technology since 1971 made much of former Sec. 1926.550 obsolete.
In response to these requests, in 1998 OSHA's Advisory Committee
for Construction Safety and Health (ACCSH) established a workgroup to
develop recommended changes to the subpart N requirements for cranes
and derricks. The workgroup developed recommendations on some issues
and submitted them to the full committee in a draft workgroup report.
(ID-0020.) In December 1999, ACCSH recommended to OSHA that the agency
consider using a negotiated rulemaking process as the mechanism to
update subpart N. (OSHA-ACCSH1999-4-2006-0187-0035.)
B. The Cranes and Derricks Negotiated Rulemaking Advisory Committee (C-
DAC)
In July 2002, OSHA announced plans to use negotiated rulemaking
under the Negotiated Rulemaking Act (NRA), 5 U.S.C. 561 et seq., to
revise the cranes and derricks standard. The Agency made this decision
in light of the stakeholder interest in updating subpart N, the
constructive discussions and work of the ACCSH workgroup, ACCSH's
recommendation, a positive assessment of the criteria listed in the NRA
(5 U.S.C. 563(a)) for the use of negotiated rulemaking, and the
Department of Labor's policy on negotiated rulemaking (see ``Notice of
Policy on Use of Negotiated Rulemaking Procedures by Agencies of the
Department of Labor,'' 57 FR 61925, Dec. 29, 1992). The Agency
published a Notice of Intent to Establish a Cranes and Derricks
Negotiated Rulemaking Advisory Committee (``C-DAC'' or ``the
Committee'')) (see 67 FR 46612, Jul. 16, 2002).
Negotiated rulemaking is a process by which a proposed rule is
developed by a committee comprised of members who represent the
interests that will be significantly affected by the rule. Section 562
of the NRA defines ``interest'' as follows:
``[I]nterest'' means, with respect to an issue or matter,
multiple parties which have a similar point of view or which are
likely to be affected in a similar manner.
By including different viewpoints in the negotiation process, the
members of a negotiated rulemaking committee learn the reasons for
different positions on the issues as well as the practical effect of
various approaches. Each member of the committee participates in
resolving the interests and concerns of other members. Negotiation
allows interested parties, including members who represent the
interests of employers subject to the prospective rule and the
employees who will benefit from the safer workplaces the rule will
produce, to become involved at an earlier stage of the rulemaking
process. As a result, the rule that OSHA proposes would receive close
scrutiny by affected parties at the pre-proposal stage.
The goal of the negotiated rulemaking process is to develop a
proposed rule that represents a consensus of all the interests. The NRA
defines consensus as unanimous concurrence among the interests
represented on a negotiated rulemaking committee unless the committee
itself unanimously agrees to use a different definition of consensus.
As discussed below, C-DAC agreed by unanimous vote to a different
definition: A consensus would be reached on an issue when not more than
two non-Federal members dissented on that issue.
In the July 2002 Federal Register notice announcing negotiated
rulemaking on cranes and derricks mentioned earlier, the Agency listed
key issues that it expected the negotiations to address, and the
interests that OSHA tentatively identified as being significantly
affected by the rulemaking. The key interests were:
--Crane and derrick manufacturers, suppliers, and distributors.
--Companies that repair and maintain cranes and derricks.
--Crane and derrick leasing companies.
--Owners of cranes and derricks.
--Construction companies that use cranes and derricks.
--General contractors.
--Labor organizations representing construction employees who operate
cranes and derricks.
--Labor organizations representing construction employees who work in
conjunction with cranes and derricks.
--Owners of electric power distribution lines.
--Civil, structural and architectural engineering firms and engineering
consultants involved with the use of cranes and derricks in
construction.
--Training organizations.
--Crane and derrick operator testing organizations.
--Insurance and safety organizations, and public interest groups.
--Trade associations.
--Government entities involved with construction safety and with
construction operations involving cranes and derricks.
In the Federal Register notice, OSHA asked for public comment on
whether interests other than those listed would be significantly
affected by a new rule. It also solicited requests for membership on
the Committee. OSHA also urged interested parties form coalitions to
support individuals identified for nomination to the Committee.
The Agency noted that the need to limit the Committee's membership
to a number that could conduct effective negotiations may result in
some interests not being represented on the Committee. OSHA further
noted that interested persons had means other than Committee membership
available to participate in the Committee's deliberations, including
attending meetings and addressing the Committee, providing written
comments to the Committee, and participating in Committee workgroups
(see 67 FR 46612, 46615, Jul. 16, 2002).
In response to its request for public input, the Agency received
broad support for using negotiated rulemaking, as well as 55
nominations for committee membership. To keep membership to a
reasonable size, OSHA tentatively listed 20 potential committee
members, and asked for public comment on the proposed list (see 68 FR
9036,
[[Page 47908]]
Feb. 27, 2003). In response to the comments, OSHA added three members
to the committee--individuals from the mobile crane manufacturing
industry, the Specialized Carriers & Rigging Association, and the
outdoor advertising industry (see 68 FR 39879, Jul. 3, 2003).
The members of the Committee, the organizations and interests they
represent, and a summary of their qualifications at the time the
Committee was formed are in Table 1 below:
Table 1--The Qualifications of C-DAC Members
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Stephen Brown, International Union of Operating Engineers (labor)
Title: Director of Construction Training, International Union of
Operating Engineers.
Organizations/interests represented: Organized construction
employees who operate cranes and derricks, and work with such
equipment.
Experience: Worked in numerous positions in the construction
industry over 28 years, including Equipment Operator, Mechanic, and
Training Director.
Michael Brunet, Manitowoc Cranes, Inc. (manufacturers and suppliers)
Title: Director of Product Support for Manitowoc Cranes.
Organizations/interests represented: Crane manufacturers, suppliers,
and distributors.
Experience: Extensive engineering experience in crane engineering;
participated in development of SAE and ISO standards for cranes.
Stephen P. Chairman, Viacom Outdoor, Inc. (employer users)
Title: Vice President (New York) of Viacom Outdoor Group.
Organizations/interests represented: Billboard construction.
Experience: Over 43 years' experience with the construction
industry, including specialized rigging.
Joseph Collins, Zachry Construction Corporation (employer users)
Title: Crane Fleet Manager.
Organizations/interests represented: Highway and railroad
construction.
Experience: Over 30 years' experience with the construction industry
in a variety of positions including crane operator, mechanic, and
rigger.
Noah Connell, U.S. Department of Labor, Occupational Safety and Health
Administration (government)
Title: Director, Office of Construction Standards and Guidance.
Organization/interests represented: Government.
Experience: 22 years' experience with government safety and health
programs.
Peter Juhren, Morrow Equipment Company, L.L.C. (manufacturers and
suppliers)
Title: National Service Manager.
Organization/interests represented: Tower crane distributors and
manufacturers.
Experience: 22 years' experience with Morrow Equipment Company,
L.L.C.
Bernie McGrew, Link-Belt Construction Equipment Corp. (manufacturers and
suppliers)
Title: Manager for Crane Testing, Product Safety, Metal Labs and
Technical Computing.
Organization/interests represented: Mobile crane manufacturers.
Experience: Extensive engineering experience in crane engineering.
Larry Means, Wire Rope Technical Board (manufacturers and suppliers)
Title: Rope Engineer.
Organization/interests represented: Wire rope manufacturing
industry.
Experience: 36 years' wire rope engineering experience.
Frank Migliaccio, International Association of Bridge, Structural,
Ornamental and Reinforcing Iron Workers (labor organization)
Title: Executive Director for Safety and Health.
Organization/interests represented: Organized construction employees
who operate cranes and derricks, and work with such equipment.
Experience: 31 years' experience in the ironworking industry,
including 10 years as Director of Safety and Health Training for
the Ironworker's National Fund.
Brian Murphy, Sundt Corporation (employer users)
Title: Vice President and Safety Director.
Organization/interests represented: General contractors; crane
owners and users.
Experience: Over 35 years' experience in the construction industry,
most of them with Sundt Corp.
George R. ``Chip'' Pocock, C.P. Buckner Steel Erection (employer users)
Title: Safety and Risk Manager.
Organization/interests represented: Steel erection crane users and
employers.
Experience: Over 22 years' experience in the construction and steel
erection industry.
David Ritchie, St. Paul Companies (trainer and operator testing)
Title: Crane and Rigging Specialist.
Organization/interests represented: Employee training and
evaluation.
Experience: Over 31 years' experience in the construction industry.
Emmett Russell, International Union of Operating Engineers (IUOE)
(labor)
Title: Director of Safety and Health.
Organization/interests represented: Organized construction employees
who operate cranes and derricks, and work with such equipment.
Experience: Over 32 years' experience in the crane and construction
industry, including 10 years in the field as well as over 20 years
with IUOE.
Dale Shoemaker, Carpenters International Training Center (labor)
Organization/interests represented: Labor organizations representing
construction employees who operate cranes and derricks and who work
with cranes and derricks.
Experience: Became a crane operator in 1973; served as a rigging
trainer for labor organizations since 1986.
William Smith, Maxim Crane Works (lessors/maintenance)
Title: Corporate Safety/Labor Relations Manager.
Organization/interests represented: Crane and derrick repair and
maintenance companies.
Experience: 24 years' experience in the crane, rigging, and
construction industry, both public and private sectors.
Craig Steele, Schuck & Sons Construction Company, Inc. (employer users)
Title: President and CEO.
Organization/interests represented: Employers and users engaged in
residential construction.
Experience: 30 years' experience in the construction industry with
Schuck & Sons Construction Company, Inc.
[[Page 47909]]
Darlaine Taylor, Century Steel Erectors, Inc. (employer users)
Title: Vice President.
Organization/interests represented: Steel erection and leased crane
users.
Experience: 19 years' with Century Steel Erectors, over 12 years' in
the construction safety field.
Wallace Vega III, Entergy Corp. (power line owners)
Organization/interests represented: Power line owners.
Experience: 35 years' experience in the power line industry.
William J. ``Doc'' Weaver, National Electrical Contractors Association
(employer users)
Organization/interests represented: Electrical contractors engaged
in power line construction.
Experience: Over 53 years' electrical construction experience, 37 of
which spent in management positions.
Robert Weiss, Cranes, Inc. and A.J. McNulty & Company, Inc. (employer
users)
Title: Vice President and Project Manager for Safety.
Organization/interests represented: Employers and users engaged in
precast concrete erection.
Experience: 20 years' experience in the precast and steel erection
industry.
Doug Williams, C.P. Buckner Steel Erection (employer users)
Title: President.
Organization/interests represented: Buckner Heavy Lift Cranes.
Experience: 32 years' experience in the construction industry.
Stephen Wiltshire, Sports and Public Assembly Group, Turner Construction
Corp. (employer users)
Title: National Safety Director.
Organization/interests represented: Employers and users of owned and
leased cranes.
Experience: 28 years' experience in construction safety.
Charles Yorio, Acordia (Wells Fargo) (insurance)
Title: Assistant Vice President.
Organization/interests represented: Insurance.
Experience: 17 years' experience in loss prevention and regulatory
compliance.
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As this summary of qualifications shows, the Committee members had
vast and varied experience in cranes and derricks in construction,
which gave them a wealth of knowledge in the causes of accidents and
other safety issues involving such equipment. The members used this
knowledge to identify issues that required particular attention and to
devise regulatory language that would address the causes of such
accidents. Their extensive practical experience in the construction
industry and the other industries represented on the Committee helped
them to develop revisions to the current subpart N requirements.
C-DAC was chaired by a facilitator, Susan L. Podziba of Susan
Podziba & Associates, a firm engaged in public policy mediation and
consensus building. Ms. Podziba's role was to facilitate the
negotiations by: (1) Chairing the Committee's meetings in an impartial
manner; (2) Assisting the members of the committee in conducting
discussions and negotiations; and (3) Ensuring minutes of the meetings
were taken, and relevant records retained; (4) Performing other
responsibilities such as drafting meeting summaries to be reviewed and
approved by C-DAC members.
C-DAC first met from July 30 to August 1, 2003. Before addressing
substantive issues, the Committee developed ground rules (formally
approved on September 26, 2003) that would guide its deliberations.
(OSHA-S030-2006-0663-0373.) In addition to procedural matters, the
ground rules addressed the Committee's decision-making process. C-DAC
agreed that it would make every effort to reach unanimous agreement on
all issues. However, if the facilitator determined that unanimous
consent could not be achieved, the Committee would consider consensus
to be reached when not more than two non-Federal members (i.e., members
other than the OSHA member) dissented; no consensus could be achieved
if OSHA dissented.
This consensus process reflects the non-Federal members' view that
Agency support of the Committee's work was essential. The non-Federal
members believed that, if OSHA dissented, the Committee's work product
likely would not be included in the final rule. Therefore, the
Committee members would make every effort to resolve the Agency's
concerns using the negotiation process.
Under the ground rules, if C-DAC reached final consensus on some or
all issues, OSHA would use the consensus-based language in its proposed
standard, and C-DAC members would refrain from providing formal written
negative comment on those issues in response to the proposed rule.
The ground rules provided that OSHA could only depart from the
consensus-based language by (1) reopening the negotiated rulemaking
process, or (2) providing the C-DAC members with a detailed statement
of the reasons for revising the consensus-based language, and do so in
a manner that would allow the C-DAC members to express their concerns
to OSHA before it published the proposed rule. The Committee members
also could provide negative or positive comments in response to these
revisions during the public-comment phase of the rulemaking. (OSHA-
S030-2006-0663-0373.)
A tentative list of issues for the Committee to address was
published along with the final list of Committee members (68 FR at
39877, Jul. 3, 2003). At its initial meeting, the Committee reviewed
and revised the issue list, adding several issues. (OSHA-S030-2006-
0663-0372.) The Committee met 11 times between July 30, 2003 and July
9, 2004. As the meetings progressed, the Committee reached consensus
agreement on various issues and, at the final meeting, reached
consensus agreement on all outstanding issues.
The Committee's work product, which was the Committee's recommended
regulatory text for the proposed rule, is referred to in this notice as
the ``C-DAC Document.'' (OSHA-S030-2006-0663-0639.) On October 12,
2006, ACCSH adopted a resolution supporting the C-DAC Document and
recommending that OSHA use it as the basis for a proposed standard.
(OSHA-ACCSH2006-1-2006-0198-0021.)
OSHA issued a proposed rule based on the C-DAC Document on October
9, 2008 (73 FR 59713, Oct. 9, 2008). In reviewing the C-DAC Document
and drafting the proposed rule, OSHA identified several problems in the
C-DAC Document. These problems ranged from misnumbering and other
typographical and technical errors, to
[[Page 47910]]
provisions that appeared to be inconsistent with the Committee's
purpose, or that were worded in a manner that required clarification.
The proposed rule deviated from the C-DAC Document when revisions were
clearly needed to validly represent the Committee's purpose or to
correct typographical and technical errors. With respect to substantive
revisions, the Agency identified and explained these revisions in the
portions of the preamble to the proposed rule that addressed the
affected provisions. OSHA also prepared a draft of the proposed
regulatory language identifying each instance in which the proposed
rule differed from the C-DAC Document. In accordance with the ground
rules, prior to publication of the proposed rule in the Federal
Register, OSHA provided the draft showing the revisions to the C-DAC
Document, along with its draft of the summary and explanation of the
proposed rule, to the C-DAC members.
Additionally, the Agency identified other instances in which the
regulatory text drafted by the Committee did not appear to conform to
the Committee's purpose, or instances in which a significant issue did
not appear to have been considered by C-DAC. In these instances, OSHA
retained the regulatory language used in the C-DAC Document, but asked
for public comment on whether specific revisions should be made to the
proposed regulatory language in the final rule.
The proposed rule set a deadline of December 8, 2008, for the
public to submit comments on the proposal. At the request of a number
of stakeholders, this deadline was subsequently extended to January 22,
2009 (73 FR 73197, Dec. 2, 2009). On March 17, 2009, OSHA convened a
public hearing on the proposal, with Administrative Law Judge John M.
Vittone presiding. The hearing lasted four days, closing on March 20.
In addition to Judge Vittone, Administrative Law Judge William S.
Colwell presided during the last part of the hearing. At the close of
the hearing, Judge Colwell established a posthearing comment schedule.
Participants were given until May 19, 2009 to supplement their
presentations and provide data and information in response to questions
and requests made during the hearing, make clarifications to the
testimony and record that they believed were appropriate, and submit
new data and information that they considered relevant to the
proceeding. Participants also were given until June 18, 2009, to
comment on the testimony and evidence in the record, including
testimony presented at the hearing and material submitted during the
first part of the posthearing comment period.
C. Hazards Associated With Cranes and Derricks in Construction Work
OSHA estimates that 89 crane-related fatalities occur per year in
construction work. The causes of crane-related fatalities were recently
analyzed by Beavers, et al. (See J.E. Beavers, J.R. Moore, R. Rinehart,
and W.R. Schriver, ``Crane-Related Fatalities in the Construction
Industry,'' 132 Journal of Construction Engineering and Management 901
(Sept. 2006) (ID OSHA-2007-0066-0012 \1\).) The authors searched OSHA's
Integrated Management Information System (IMIS) database for all fatal
accidents for 1997-2003 investigated by OSHA involving cranes in the
construction industry. By searching the database for cases using the
key words ``crane,'' ``derrick,'' or ``boom,'' they identified 381 IMIS
files for the covered year in the Federal program states, which include
states with about 57% of all workers throughout the country. The
authors requested the case files from OSHA so that they could confirm
that a crane or derrick was involved in the fatality. Of the 335 case
files that OSHA provided, the authors identified 125 (involving 127
fatalities) as being crane or derrick related. From these files, they
determined the percentages of fatalities caused by various types of
incidents (see Table 2 below).
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\1\ The term ``ID'' refers to the column labeled ``ID'' under
Docket No. OSHA-2007-0066 on the Federal eRulemaking Portal, http://www.regulations.gov. This column lists individual records in the
docket. Hereafter, this notice will identify each of these records
only by the last four digits of the record. Records from dockets
other than OSHA-2007-0066 are identified by their full ID number.
Table 2--The Causes of Fatalities During the Performance of Hoisting
Activities
------------------------------------------------------------------------
------------------------------------------------------------------------
Struck by load (other than failure of boom/cable).......... 32%
Electrocution.............................................. 27%
Crushed during assembly/disassembly........................ 21%
Failure of boom/cable...................................... 12%
Crane tip-over............................................. 11%
Struck by cab/counterweight................................ 3%
Falls...................................................... 2%
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A study by Suruda et al. examined the causes of crane-related
deaths for the 1984-1994 period. (See A. Suruda, M. Egger, and D. Liu,
``Crane-Related Deaths in the U.S. Construction Industry, 1984-94,''
The Center to Protect Workers' Rights (Oct. 1997) (ID-0013).) The
authors examined OSHA IMIS data to identify the number of fatal
accidents involving cranes, and determined their causes. For the years
in question, they found 479 accidents involving 502 fatalities. In the
worst year, 1990, 70 deaths occurred. The authors noted some
limitations in the data they examined: Data for California, Michigan,
and Washington State were not available for 1984-1989; the proportion
of fatal accidents investigated by OSHA and states having OSHA-approved
State plans is unknown; and some of the investigation reports were not
sufficiently detailed to allow the authors to determine the cause of
the accident or the type of crane involved.
The Suruda study determined the number and the percentage of
fatalities from various causes (see Table 3 below).
Table 3--The Causes of Crane Incidents
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------------------------------------------------------------------------
Electrocution.............................................. 198 (39%)
Crane assembly/disassembly................................. 58 (12%)
Boom buckling/collapse..................................... 41 (8%)
Crane upset/overturn....................................... 37 (7%)
Rigging failure............................................ 36 (7%)
Overloading................................................ 22 (4%)
Struck by moving load...................................... 22 (4%)
Accidents related to manlifts.............................. 21 (4%)
Working within swing radius of counterweight............... 17 (3%)
Two-blocking............................................... 11 (2%)
Hoist limitations.......................................... 7 (1%)
Other causes............................................... 32 (6%)
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This final standard addresses the major causes of the equipment-
related fatalities identified in the Beavers and Suruda studies. The
following synopsis identifies the sections in the final standard that
address the major causes of equipment-related fatalities.
Electrocution hazards are addressed by Sec. Sec. 1926.1407-
1926.1411, which deal with power-line safety. These sections contain
requirements to prevent equipment from contacting energized power
lines. The final standard delineates systematic, reliable procedures
and methods that employers must use to prevent a safe clearance
distance from being breached. If maintaining the safe clearance
distance is infeasible, additional protections are required, including
grounding the equipment, covering the line with an insulating sleeve,
and using insulating links and nonconductive tag lines.
These procedures and methods are supplemented by requirements for
training the operator and crew in power-line safety (see Sec.
1926.1408(g)), and requirements for operator qualification and
certification in Sec. 1926.1427. C-DAC concluded that compliance with
these training and certification requirements will not only reduce the
frequency of power-line contact, but will give the
[[Page 47911]]
workers the knowledge they need to help avoid injury in the event such
contact occurs.
Fatalities that involve employees being struck or crushed during
assembly/disassembly are addressed in Sec. Sec. 1926.1403-1926.1406.
These sections require employers to follow specific safe-practice
procedures, and to address a list of specific hazards. Also, assembly
and disassembly of a crane must be supervised by an individual who is
well qualified to ensure that these requirements of these provisions
are properly implemented.
As the above-mentioned studies show, and the Committee's experience
confirms, many disassembly accidents occur when sections of lattice
booms unexpectedly move and strike or crush an employee who is
disassembling the boom. The final standard addresses this hazard in
Sec. 1926.1404(f) by prohibiting employees from being under the boom
when pins are removed unless special precautions are taken to protect
against boom movement.
Accidents resulting from boom or cable failure are addressed in a
number of provisions. For example, the standard includes requirements
for: proper assembly procedures (Sec. 1926.1403); boom stops to
prevent booms from being raised too far and toppling over backwards
(Sec. 1926.1415, Safety devices); a boom-hoist limiting device to
prevent excessive boom travel, and an anti two-block device, which
prevents overloading the boom from two-blocking (Sec. 1926.1416,
Operational aids). Also, the inspection requirements (Sec. 1926.1412)
detect and address structural deficiencies in booms before an accident
occurs. Cable failure will be avoided by compliance with sections such
as Sec. 1926.1413, Wire rope--inspection, and Sec. 1926.1414, Wire
rope--selection and installation criteria.
Crane tip-over is caused by factors such as overloading, improper
use of outriggers and insufficient ground conditions. Section
1926.1417, Operations, includes provisions to prevent overloading. This
section prohibits the equipment from being operated in excess of its
rated capacity, and includes procedures for ensuring that the weight of
the load is reliably determined and within the equipment's rated
capacity. Section 1926.1404(q) has requirements for outrigger/
stabilizer use that will ensure that outriggers and stabilizers provide
stability when a load is lifted. Section 1926.1402 contains
requirements to ensure sufficient ground conditions, which will prevent
crane tip-over.
The provisions addressing operator training, qualification, and
certification also will prevent tip-over accidents by ensuring that the
operator is sufficiently knowledgeable and skilled to recognize
situations when the crane may be overloaded.
Fatalities that result from workers being struck by the cab or
counterweights will be avoided under Sec. 1926.1424, Work area
control. That section requires that workers who are near equipment with
a rotating superstructure be trained in the hazards involved, that
employers mark or barricade the area covered by the rotating
superstructure, and that the operator be notified whenever a worker
must enter that area, and instructed not rotate the superstructure
until the area is clear. Protection against being struck by a
counterweight during assembly or disassembly is provided by Sec.
1926.1404(h)(9), which requires the assembly/disassembly supervisor to
address this hazard and take steps when necessary to protect workers
against that danger.
The final rule addresses a number of equipment failures that can
result in the load striking a worker. Such accidents are directly
addressed by Sec. 1926.1425, Keeping clear of the load, and Sec.
1926.1426, Free fall/controlled load lowering. In addition, improved
requirements in Sec. Sec. 1926.1419-1926.1422 for signaling will help
avoid load struck-by accidents caused by miscommunication.
Improper operation, including failure to understand and compensate
for the effects of factors such as dynamic loading, can also cause
workers to be struck by a load. Such incidents will be reduced by
compliance with Sec. 1926.1427, Operator qualification and
certification and Sec. 1926.1430, Training. Other provisions, such as
those for safety devices and operational aids (Sec. Sec. 1926.1415 and
1926.1416), and the requirement for periodic inspections in Sec.
1926.1412, will also reduce these accidents.
Protection against falling from equipment is addressed by Sec.
1926.1423, Fall protection. That section requires that new equipment
provide safe access to the operator work station, using devices such as
steps, handholds, and grabrails. Some new lattice-boom equipment must
be equipped with boom walkways. The final standard also contains fall-
protection provisions tailored to assembly and disassembly work, and to
other work. Section 1926.1431, Hoisting personnel, addresses fall
protection when employees are being hoisted.
OSHA has investigated numerous crane accidents that resulted in
fatalities. Below are examples from OSHA's IMIS investigation reports
that describe accidents that compliance with this final standard would
prevent.
1. February 16, 2004: four fatalities, four injuries. A launching
gantry collapsed and fatally injured four workers and sent four other
workers to the hospital. The launching gantry was being used to erect
pre-cast concrete segments span by span. The manufacturer required that
the rear legs and front legs be properly anchored to resist
longitudinal and lateral forces that act on the launching gantry. The
legs of the launching gantry were not properly anchored. (ID-0017.)
OSHA believes that this type of accident will be prevented by
compliance with the provisions of this final standard for assembling
equipment. Section 1926.1403 requires that equipment be assembled in
compliance with the manufacturer's procedures, or with alternative
employer procedures (see Sec. 1926.1406) to prevent the equipment from
collapsing. In addition, under Sec. 1926.1404, assembly must be
conducted under the supervision of a person who understands the hazards
associated with an improperly assembled crane and is well-qualified to
understand and comply with the proper assembly procedures.
2. January 30, 2006. One fatality. An employee was crushed by the
lower end section of the lattice boom on a truck-mounted crane while
working from a position underneath the boom to remove the 2nd lower
pin. When the 2nd lower pin was removed, the unsecured/uncribbed boom
fell on the employee. (ID-0017.1.)
Section 1926.1404(f) will prevent this type of accident by
generally prohibiting employees from being under the boom when pins are
removed. In situations in which site constraints require that an
employee be under the boom when pins are removed, the employer must
implement other procedures, such as ensuring that the boom sections are
adequately supported, to prevent the sections from falling on the
employee.
3. July 23, 2001: One fatality. Employee failed to extend the
outriggers before extending the boom of a service-truck crane to lift
pipes. As the employee extended the boom, the crane tipped over on its
side, and another employee standing near the truck was struck on the
head by the hook block. (ID-0017.10.)
This type of accident will be prevented by compliance with Sec.
1926.1404(q), which contains several provisions to ensure that
outriggers and stabilizers are deployed properly before lifting a load.
In addition, the operator
[[Page 47912]]
qualification and certification requirements of Sec. 1926.1427, which
ensure that operators understand and follow the safety-requirements for
the equipment they are operating, will help prevent this type of
accident.
4. March 8, 1999. One fatality. Employees were using a mobile crane
to maneuver a load of steel joists. The crane contacted a 7,200-volt
overhead power line, electrocuting an employee who was signaling and
guiding the load. The crane operator jumped clear and was not injured.
(ID-0017.11.)
Section 1926.1408 includes provisions that will prevent this type
of accident. This section requires the use of ``encroachment
prevention'' measures to prevent the crane from breaching a safe
clearance distance from the power line. It also requires that, if tag
lines are used to guide the load, the lines must be non-conductive.
Finally, if maintaining the normal clearance distance is infeasible, a
number of additional measures must be implemented, one of which is the
use of an insulating link between the end of the load line and the
load.
These measures protect employees guiding the load in several ways,
including: reducing the chance that a crane would contact a power line;
employees using tag lines to guide a load from being electrocuted
should the load become energized.
5. August 21, 2003. Three fatalities. A crane operator and two co-
workers were electrocuted when a truck crane's elevated boom contacted
a 7,200 volt uninsulated primary conductor 31 feet above the ground.
When the operator stepped from the cab of the truck, a conduction
pathway to the ground was established through the operator's right hand
and right foot, resulting in electrocution. A co-worker attempted to
revive the incapacitated crane operator with cardio-pulmonary
resuscitation (``CPR''), while a third co-worker contacted 911, and
then returned to the incident location. When the third co-worker
simultaneously touched the energized truck crane and the back of the
co-worker performing CPR, the resulting pathway conducted the
electrical charge through the workers, electrocuting them all. (ID-
0017.12.)
The final standard will avoid this type of accident. Section
1926.1408 ensures that a minimum safe distance from the power line is
maintained, which prevents equipment from becoming energized. Also,
when working closer than the normal minimum clearance distance, the
crane must be grounded, which reduces the chance of an electrical
pathway through the workers.
In addition, Sec. 1926.1408(g) requires that the operator be
trained to remain inside the cab unless an imminent danger of fire or
explosion is present. The operator also must be trained in the hazards
associated with simultaneously touching the equipment and the ground,
as well as the safest means of evacuating the equipment. The crane's
remaining crew must be trained to avoid approaching or touching the
equipment. The required training is reinforced by the electrocution
warnings that must be posted in the cab and on the outside of the
equipment.
6. September 28, 1999: One fatality. A 19-year old electrical
instrument helper was at a construction site that was on a
manufacturing company's property. A contractor positioned a 50-ton
hydraulic crane in an open area that consisted of compacted fill
material. This area was the only location that the crane could be
situated because the receiving area for the equipment was too close to
the property border.
The crane's outriggers were set, but matting was placed only under
one of the outrigger pads. As the crane was moving large sections of
piping to a new location, the ground collapsed and the crane
overturned, striking the helper. (ID-0017.13.)
Section 1926.1402, Ground conditions, will prevent this type of
accident. Under that section, employers must ensure that the surface on
which a crane is operating is sufficiently level and firm to support
the crane in accordance with the manufacturer's specifications. In
addition, Sec. 1926.1402 imposes specific duties on both the entity
responsible for the project (the controlling entity) and the entity
operating the crane to ensure that the crane is adequately supported.
It places responsibility for ensuring that the ground conditions are
adequate on the controlling entity, while also making the employer
operating the crane responsible notifying the controlling entity of any
deficiency in the ground conditions, and having the deficiency
corrected before operating the crane.
7. June 17, 2006: One fatality. A spud pipe, used to anchor a
barge, was being raised by a crane mounted on the barge when the
hoisting cable broke, causing the headache ball and rigging to on an
employee. (ID-0017.3.)
This type of accident can have various causes: an improperly
selected wire rope (one that has insufficient capacity); a damaged or
worn wire rope in need of replacement; or two-blocking, in which the
headache ball is forced against the upper block, causing the wire rope
to fail. The provisions of Sec. Sec. 1926.1413 and 1926.1414 address
wire rope inspection, selection, and installation, and will ensure that
appropriate wire rope is installed, inspected and removed from service
when continued use is unsafe. Section 1926.1416, Operational aids,
contains provisions to protect against two-blocking.
8. July 13, 1999: Three fatalities. Three employees were in a
personnel basket 280 feet above the ground. They were in the process of
guiding a large roof section, being lifted by another crane, into
place. Winds gusting to 27 miles per hour overloaded the crane holding
the roof section; that crane collapsed, striking the crane that was
supporting the personnel basket, causing the boom to fall. All three
employees received fatal crushing injuries. (ID-0018.)
This type of accident will be prevented by Sec. 1926.1417(n),
which requires the competent person in charge of the operation adjust
the equipment and/or operations to address the effect of wind and other
adverse weather conditions on the equipment's stability and rated
capacity. In addition, Sec. 1926.1431, Hoisting personnel, requires
that, when wind speed (sustained or gust) exceeds 20 mph, employers
must not hoist employees by crane unless a qualified person determines
it is safe to do so.
9. November 7, 2005: One fatality. A construction worker was
crushed between the outrigger and the rotating superstructure of a
truck crane. The worker apparently was trying to retrieve a level and a
set of blueprints located horizontal member of one of the outriggers
when the operator began to swing the boom. (ID-0017.5.)
Section 1926.1424, Work area control, will prevent this type of
accident. This section generally requires that employers erect barriers
to mark the area covered by the rotating superstructure to warn workers
of the danger zone. However, workers who must work near equipment with
a rotating superstructure must be trained in the hazards involved. If a
worker must enter a marked area, the crane operator must be notified of
the entry, and must not rotate the superstructure until the area is
clear.
10. March 19, 2005: Two fatalities and one injury. During steel-
erection operations, a crane was lifting three steel beams to a parking
garage. The crane tipped over and the boom collapsed. The boom and
attached beams struck concrete workers next to the structure, killing
two workers and injuring one worker. The accident apparently occurred
because the crane was overloaded. (ID-0017.6.)
[[Page 47913]]
Overloading a crane can cause it to tip over, causing the load or
crane structure to strike and fatally injure workers in the vicinity of
the crane. Section 1926.1417, Operations, includes provisions to
prevent overloading. This section prohibits employers from operating
equipment in excess of its rated capacity, and includes procedures for
ensuring that the weight of the load is reliably determined and within
the equipment's rated capacity.
The provisions of the final standard addressing operator training,
certification, and qualification (Sec. 1926.1427) will also prevent
this type of accident by ensuring that operators recognize conditions
that would overload the crane.
11. December 7, 2005. One fatality. Two cranes were used to lower a
concrete beam across a river. During the lowering process, one end of
the beam dropped below the other end, causing the load's weight to
shift to the lower end; this shift in weight overloaded the crane
lifting the lower end, and it tipped over. The lower end of the beam
fell into the river, while the higher end landed on a support mat
located on the bank of the river, causing a flagger to be thrown into
the beam. (ID-0017.7.)
Section 1926.1432, Multiple crane/derrick lifts--supplemental
requirements, will prevent this type of accident. This section
specifies that, when more than one crane is supporting a load, the
operation must be performed in accordance with a plan developed by a
qualified person. The plan must ensure that the requirements of this
final standard are met, and must be reviewed by all individuals
involved in the lifting operation. Moreover, the lift must be
supervised by an individual who qualifies as both a competent person
and a qualified person as defined by this final standard. For example,
in the accident just described, the plan must include a determination
of the degree of level needed to prevent either crane from being
overloaded. In addition, the plan must ensure proper coordination of
the lifting operation by establishing a system of communications and a
means of monitoring the operation.
12. May 7, 2004: One fatality. An employee, a rigger/operator-in-
training, was in the upper cab of a 60-ton hydraulic boom-truck crane
to set up and position the crane boom prior to a lift. The crane was
equipped with two hoists--a main line and auxiliary. The main hoist
line had a multi-sheave block and hook and the auxiliary line had a 285
pound ball and hook. When the employee extended the hydraulic boom, a
two-block condition occurred with the auxiliary line ball striking the
auxiliary sheave head and knocking the sheave and ball from the boom.
The employee was struck in the head by the falling ball. (ID-0017.8.)
This type of accident will be prevented by Sec. 1926.1416,
Operational aids, which requires protection against two-blocking. A
hydraulic boom crane, if manufactured after February 28, 1992, must be
equipped with a device that automatically prevents two-blocking.
Also, the final rule, under Sec. 1926.1427(a) and (f), prohibits
an operator-in-training from operating a crane without being monitored
by a trainer, and without first having sufficient training to enable
the operator-in-training to perform the assigned task safely.
13. April 26, 2006: One fatality. A framing crew was installing
sheathing for a roof. A crane was hoisting a bundle of plywood
sheathing to a location on the roof. As the crane positioned the bundle
of sheathing above its landing location, the load hoist on the crane
free spooled, causing an uncontrolled descent of the load. An employee
was under the load preparing to position the load to its landing spot
when the load fell and crushed him. (ID-0017.9.)
Section 1926.1426, Free fall and controlled load lowering, will
prevent this type of accident. This section prohibits free fall of the
load-line hoist, and requires controlled lowering of the load when an
employee is directly under the load.
As discussed later in the section titled, Executive Summary of the
Final Economic Analysis; Final Regulatory Flexibility Analysis, OSHA
finds that construction workers suffer 89 fatal injuries per year from
the types of equipment covered by this final standard. Of that number,
OSHA estimates that 21 fatalities would be avoided by compliance with
the final standard. In addition, OSHA estimates that the final standard
would prevent 175 non-fatal injuries each year. Based on its review of
all the available evidence, OSHA finds that construction workers have a
significant risk of death and injury resulting from equipment
operations, and that the risk would be substantially reduced by
compliance with this final standard.
The OSH Act requires OSHA to make certain findings with respect to
standards. One of these findings, specified by Section 3(8) of the OSH
Act, requires an OSHA standard to address a significant risk and to
reduce this risk substantially. (See UAW v. OSHA, 37 F.3d 665, 668 (DC
Cir. 1994) (``LOTO'').) As discussed in Section II of this preamble,
OSHA finds that crane and derrick operations in construction constitute
a significant risk and estimates that the final standard will prevent
22 fatalities and 175 injuries annually. Section 6(b) of the OSH Act
requires OSHA to determine if its standards are technologically and
economically feasible. As discussed in Section V of this preamble, OSHA
finds that this final standard is economically and technologically
feasible.
The Regulatory Flexibility Act (5 U.S.C 601, as amended) requires
that OSHA determine whether a standard will have a significant economic
impact on a substantial number of small firms. As discussed in Section
V, OSHA examined the small firms affected by this standard and
certifies that the final standard will not have a significant impact on
a substantial number of small firms.
Executive Order 12866 requires that OSHA estimate the benefits,
costs, and net benefits of its standards. The table below summarizes
OSHA's findings with respect to the estimated costs, benefits, and net
benefits of this standard. As is clear, the annual benefits are
significantly in excess of the annual costs. However, it should be
noted that under the OSH Act, OSHA does not use the magnitude of net
benefits as decision-making criterion in determining what standards to
promulgate.
Annual Benefits, Costs, and Net Benefits, 2010 Dollars
------------------------------------------------------------------------
------------------------------------------------------------------------
Annualized Costs*:
Crane Assembly/Disassembly........ $16.3 million.
Power Line Safety................. 68.2 million.
Crane Inspections................. 16.5 million.
Ground Conditions................. 2.3 million.
Operator Qualification and 50.7 million.
Certification.
---------------------------------
Total Annualized Costs........ 154.1 million.
[[Page 47914]]
Annual Benefits:
Number of Injuries Prevented...... 175.
Number of Fatalities Prevented.... 22.
Property Damage from Tipovers 7 million.
Prevented.
---------------------------------
Total Monetized Benefits...... $209.3 million.
---------------------------------
Annual Net Benefits (Benefits minus $55.2 million.
Costs).
------------------------------------------------------------------------
Source: OSHA Office of Regulatory Analysis.
*Costs with 7% discount rate. Total costs with 3% discount rate: $150.4
million annually.
During the SBREFA process, several Small Entity Representatives
expressed concern that the C-DAC Document was so long and complex that
small businesses would have difficulty understanding it and complying
with it. The SBREFA Panel recommended that OSHA solicit public comment
on how the rule could be simplified and made easier to understand. In
the proposal, OSHA requested public comment on this issue. The Agency
did not receive any comments objecting to the length or clarity of the
overall rule, or any comment on how to simplify the final rule. Some
commenters recommended that specific provisions be clarified, and these
comments are addressed later in this preamble.
III. The SBREFA Process
Before proceeding with a proposed rule based on the C-DAC Document,
OSHA was required to comply with the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq. (SBREFA). This
process required OSHA to draft an initial regulatory flexibility
analysis that would evaluate the potential impact of the rule on small
entities (defined as small businesses, small governmental units, and
small nonprofit organizations) and identify the type of small entities
that may be affected by the rule. In accordance with SBREFA, OSHA then
convened a Small Business Advocacy Review Panel (``Panel'') composed of
representatives of OSHA, the Office of Management and Budget, and the
Office of Advocacy of the Small Business Administration. Individuals
who were representative of affected small entities (i.e., Small Entity
Representatives, or ``SERs'') were identified for the purpose of
obtaining advice and recommendations regarding the potential impacts of
the proposed rule.
OSHA provided the SERs with the C-DAC Document and the draft
Regulatory Flexibility Analysis, and requested that they submit written
comments on these documents. The Agency also drafted questions asking
for their views on the specific aspects of the C-DAC Document that OSHA
believed may be of concern to small entities.
The Panel conducted two conference calls with the SERs in which the
SERs presented their views on various issues. After reviewing the SERs'
oral and written comments, on October 17, 2006, the Panel submitted its
report summarizing the requirements of the C-DAC proposal and the
comments received from the SERs, and presenting its findings and
recommendations. (OSHA-S030A-2006-0664-0019.) In its findings and
recommendations, the Panel identified issues that it believed OSHA
should address in the proposal (1) through further analysis, and (2) by
soliciting public comment. In the proposed rule, OSHA addressed each of
the Panel's findings and recommendations in the section pertaining to
the issue involved, and also solicited public comment on the issues
raised by the Panel. The following table lists the recommendations made
by the Panel, and OSHA's responses to these recommendations.
Table 4--SBREFA Panel Recommendations and OSHA Responses
------------------------------------------------------------------------
SBREFA Panel Recommendation OSHA Response
------------------------------------------------------------------------
The Panel recommends that OSHA provide OSHA has developed a full
full documentation for how it preliminary economic analysis
estimated the number of affected small (PEA) for the proposal which
entities and all other calculations explains all assumptions used
and estimates provided in the PIRFA. in estimating the costs and
benefits of the proposed
standard. The Final Economic
Analysis (FEA) also explains
the changes made to the
analysis as a result of
comments on the proposed rule,
and OSHA's responses to these
comments.
The Panel recommends that OSHA OSHA included homebuilding
reexamine its estimate of crane use in industries in the ``Own but Do
home building, the coverage of crane Not Rent'' and ``Crane
trucks used for loading and unloading, Lessees'' industrial profile
and the estimates of the number of categories.
jobs per crane. Changes in these OSHA has also made a number of
estimates should be incorporated into additions to the industrial
the estimates of costs and economic profile to cover firms in
impacts. general industry that
sometimes use cranes for
construction work, and has
added costs for these sectors.
The Panel recommends that OSHA review OSHA sought comments on the
its estimates for the direct costs of estimates and methodology. As
operator certification and seek a result of these comments,
comment on these cost estimates. OSHA has increased its
estimate of the unit costs of
certification.
The Panel recommends that OSHA OSHA sought public comment on
carefully examine certain types of all aspects (including
impact that could result from an economic impacts, wages,
operator certification requirement, number of operators, demand,
including reports of substantial etc.) of the operator
increases in the wages of operators; certification requirements,
the possibility of increased market specifically as it pertains to
power for firms renting out cranes; the State of California.
and loss of jobs for existing OSHA has included 2 hours of
operators due to language, literacy, travel time per operator into
or knowledge problems; and seek the unit costs for operator
comment on these types of impacts. The certification.
Panel also recommends studying the OSHA also increased the unit
impacts of the implementation of costs of operator
operator certification in CA. certification as a result of
comments. However, based on
comments, OSHA also reduced
the OSHA percentage of crane
operators still needing
certification.
[[Page 47915]]
The Agency reviewed data on
wage rates for operators in
California immediately before
and after operator
certification was required
(Employment Development
Department, Labor Market
Information Division, State of
California, 2007). The data
did not show much change in
operators' wages.
OSHA also evaluated the changes
in crane related fatality
rates in California and found
these had significantly
declined after the California
certification requirements
were put into place.
The Panel recommends that OSHA OSHA sought comment on the
reexamine its estimates for the amount methodology used to calculate
of time required to assess ground all of the costs in the PEA,
conditions, the number of persons which includes the costs for
involved in the assessment, and the assessing ground conditions.
amount of coordination involved; As a result of these comments,
clarify the extent to which such OSHA has added costs for
assessments are currently being examination of ground
conducted and what OSHA estimates as conditions. This addition of
new costs for this rule represent; and costs does not change OSHA's
seek comments on OSHA's cost estimates. conclusion that this standard
is economically feasible.
The Panel recommends that OSHA The Agency describes the
carefully review the documentation documentation requirements,
requirements of the standard, along with cost estimates, in
including documentation that employers the section of this preamble
may consider it prudent to maintain; entitled ``OMB Review Under
estimate the costs of such the Paperwork Reduction Act of
requirements; seek ways of minimizing 1995.''
these costs consistent with the goals
of the OSH Act; and solicit comment on
these costs and ways of minimizing
these costs.
The Panel recommends that OSHA examine As explained in the discussion
whether the inspection requirements of of Sec. 1926.1412,
the proposed rule require procedures Inspections, OSHA's former
not normally conducted currently, such standard at former Sec.
as lowering and fully extending the 1926.550 requires inspections
boom before the crane can be used, and each time the equipment is
removing non-hinged inspection plates used, as well as thorough
during the shift inspection, estimate annual inspections. In
the costs of any such requirements, addition, national consensus
and seek comment on these issues. standards that are
incorporated by reference
include additional inspection
requirements. This final
standard would list the
inspection requirements in one
place rather than rely on
incorporated consensus
standards. This final standard
does not impose significant
new requirements for
inspections. OSHA received
comments on the issue of
lowering and fully extending
the boom before the crane can
be used. However, OSHA
concludes that the comments
were based on a general
misunderstanding of the
requirements. Section
1926.1413(a) explicitly says
that booming down is not
required for shift (and
therefore monthly)
inspections.
Similarly, OSHA stated in the
proposed preamble (73 FR
59770, Oct. 9, 2008) that it
does not believe inspection of
any of those items would
require removal of non-hinged
inspection plates. In the
discussion of proposed Sec.
1926.1412, OSHA requested
public comment on this point.
OSHA finalized Sec.
1926.1412 as proposed because
comments did not confirm that
non-hinged plates needed to be
removed to meet the
requirements of a shift
inspection.
The Panel recommends that OSHA consider Previous subpart N, at former
the costs of meeting the requirements Sec. 1926.550(a)(2),
for original load charts and full required load charts; this is
manuals, and solicit comments on such not a new cost. Subpart N did
costs. not require manuals. OSHA
concludes that most crane
owners and operators have and
maintain crane manuals, which
contain the load charts and
other critical technical
information about crane
operations and maintenance.
The Agency determined that the
cost of obtaining a copy of a
manual should be modest and
solicited comment on how many
owners or operators do not
have full manuals for their
cranes or derricks. Few
commenters saw this as a major
problem.
The Panel recommends that OSHA provide The Agency placed additional
full documentation for its analysis of materials in the rulemaking
the benefits the proposed rule are docket to aid in the
expected to produce and assure that reproduction of the benefits
the benefits analysis is reproducible analysis. The Agency also
by others. developed a full benefits
analysis (sec. 4 of the FEA)
which includes the methodology
and data sources for the
calculations.
The Panel recommends that OSHA consider In the discussion of proposed
and solicit public comment on whether Sec. 1926.1400(c)(8), OSHA
the scope language should be clarified requested public comment on
to explicitly state whether forklifts this issue.
that are modified to perform tasks
similar to equipment (cranes and
derricks) modified in that manner
would be covered.
The Panel recommends that there be a OSHA explained in the
full explanation in the preamble of discussion of proposed Sec.
how responsibility for ensuring 1926.1402(e) how the various
adequate ground conditions is shared employers, including the
between the controlling entity, and controlling entity, the
the employer of the individual employer whose employees
supervising assembly/disassembly and/ operate the equipment, and the
or the operator. employer of the A/D director
share responsibility for
ensuring adequate ground
conditions. OSHA did not
receive any significant
comments on this issue and,
therefore, considers this
matter resolved.
The Panel recommends that OSHA restate OSHA addressed this
the applicable corrective action recommendation in the
provisions (which are set forth in the discussion of proposed Sec.
shift inspection) in the monthly 1926.1412(e) and requested
inspection section. public comment on the issue.
Based on these comments, OSHA
concludes that the
requirements were clear as
proposed, and repeating the
provisions will create
confusion. Therefore, OSHA did
not restate the corrective
actions in Sec.
1926.1412(e).
[[Page 47916]]
The Panel recommends that OSHA solicit OSHA addressed this
public comment on whether, and under recommendation in the
what circumstances, booming down discussion of proposed Sec.
should be specifically excluded as a 1926.1412(d) and requested
part of the shift inspection, and public comment on the issues
whether the removal of non-hinged raised in the recommendation.
inspection plates should be required
during the shift inspection.
The Panel recommends that OSHA solicit OSHA solicited comments on this
public comment on whether to include issue, but the Agency did not
an exception for transportation receive any significant
systems in proposed Sec. comments supporting an
1926.1412(a), which requires an exception for transportation
inspection of equipment that has had systems. Based on the analysis
modifications or additions that affect of comments received about
its safe operation, and, if so, what Sec. 1926.1412(a), OSHA
the appropriate terminology for such concludes that the inspections
an exception would be. of modifications as required
by the final rule are
sufficient to ensure that safe
equipment is used. Therefore,
OSHA did include the
recommended exclusion in the
final rule.
The Panel recommends that OSHA explain In the explanation of Sec.
in the preamble that the shift 1926.1412(d)(1) of the
inspection does not need to be proposed rule, OSHA explained
completed prior to each shift but may that the shift inspection may
be completed during the shift. be completed during the shift.
OSHA finalized Sec.
1926.1412(d)(1) as proposed
because the comments did not
demonstrate how it was safer
to deviate from the rule as
proposed.
The Panel recommends that OSHA solicit OSHA requested public comment
public comment about whether it is on this issue and revised the
necessary to clarify the requirement regulatory text of Sec.
of proposed Sec. 1926.1412(d)(1)(xi) 1926.1412(d)(1)(xi) to provide
that the equipment be inspected for more clarity, in response to
``level position.''. the comments the Agency
received.
The Panel recommends that OSHA solicit There is no requirement to
comment on whether proposed Sec. check the pressure ``at each
1926.1412(f)(2)(xii)(D) should be and every line.'' The
changed to require that pressure be provision simply states that
inspected ``at the end of the line,'' relief valves should be
as distinguished from ``at each and checked for failure to reach
every line,'' and if so, what the best correct pressure. If this can
terminology would be to meet this be done at one point for the
purpose. (An SER indicated that entire system, then that would
proposed Sec. satisfy the requirement.
1926.1412(f)(2)(xiv)(D) should be
modified to ``checking pressure
setting,'' in part to avoid having to
check the pressure at ``each and every
line'' as opposed to ``at the end of
the line.'').
The Panel recommends that OSHA solicit Section 1926.1412(f)(2)(xx) of
public comment on whether proposed the final rule does not
Sec. 1926.1412(f)(2)(xx) should be require the corrective action
deleted because an SER believes that to which the SER refers. If an
it is not always appropriate to retain inspection under Sec.
originally-equipped steps and ladders, 1926.1412(f) reveals a
such as in instances where they are deficiency, a qualified person
replaced with ``attaching dollies.''. must determine whether that
deficiency is a safety hazard
requiring immediate
correction. If the inspection
reveals that original
equipment, such as stairs and
ladders, have been replaced
with something equally safe,
there would be no safety
hazard and no requirement for
corrective action.
The Panel recommends that OSHA solicit In the discussion of proposed
public comment on the extent of Sec. 1926.1412(f)(7), OSHA
documentation of monthly and annual/ requested public comment on
comprehensive inspections the rule this issue. OSHA finalized
should require. Sec. 1926.1412(f)(7) as
proposed because the comments
did not demonstrate a need to
modify the extent of required
documentation.
The Panel recommends that OSHA solicit In the discussion of proposed
public comment on whether the Sec. 1926.1412(e), OSHA
provision for monthly inspections requested public comment on
should, like the provision for annual this issue. In response to
inspections, specify who must keep the these comments, OSHA has
documentation associated with monthly explained in the final
inspections. preamble that the employer who
performs the inspection must
maintain documentation. If
another employer wants to rely
on this inspection, but cannot
ensure completion and
documentation of the
inspection, then that employer
must conduct a monthly
inspection.
The Panel recommends that OSHA consider OSHA addressed this
ways to account for the possibility recommendation in the
that there may sometimes be an discussion of proposed Sec.
extended delay in obtaining the part 1926.1416(d), and requested
number for an operational aid for public comment on the issue.
older equipment and solicit public The Agency did not receive any
comment on the extent to which this is significant comments.
a problem.
The Panel recommends that the provision Except for a minor change to
on fall protection (proposed Sec. Sec. 1926.1423(h), which was
1926.1423) be finalized as written and made for clarity purposes,
that OSHA explain in the preamble how OSHA has finalized Sec.
and why the Committee arrived at this 1926.1423 as proposed. OSHA
provision. explained the Committee's
rationale in the proposed
preamble discussion of Sec.
1926.1423.
The Panel recommends that OSHA consider OSHA addressed these
the potential advantages of and recommendations in the
solicit public comment on adding discussion of proposed Sec.
provisions to proposed Sec. 1926.1427, and requested
1926.1427 that would allow an operator public comment on the issues
to be certified on a particular model raised by the Panel. Based on
of crane; allow tests to be these comments, OSHA is not
administered by an accredited permitting certification on a
educational institution; and allow particular crane model because
employers to use manuals that have the body of knowledge and
been re-written to accommodate the skills required to be
literacy level and English proficiency qualified/certified on a
of operators. particular model of crane is
not less than that needed to
be qualified/certified for
that model's type and
capacity. OSHA is not allowing
an institution accredited by
the Department of Education
(DOE) to certify crane
operators solely on the basis
of DOE accreditation; such
institutions would, like other
operator-certification
entities used to fulfill
Option (1), be accredited by a
``nationally recognized''
accrediting body. Finally,
OSHA is permitting employers
to re-write manuals to
accommodate the literacy level
and English proficiency of
operators.
[[Page 47917]]
The Panel recommends that OSHA clarify In the discussion of proposed
in the preamble how the proposed rule Sec. 1926.1427(h), OSHA
addresses an SER's concern that his proposed to allow the oral
crane operator would not be able to administration of tests if two
pass a written qualification/ prerequisites are met. None of
certification exam because the the comments explained why the
operator has difficulty in taking rule as proposed was not
written exams. effective for evaluating the
knowledge of the candidate.
The Panel recommends soliciting public OSHA received public comments
comment on whether the phrase on this issue. In the final
``equipment capacity and type'' in preamble discussion of Sec.
proposed Sec. 1926.1427(b)(1)(ii)(B) 1926.1427(b)(1)(ii)(B), OSHA
needs clarification, suggestions on explains that the Agency added
how to accomplish this, and whether a definition of ``type'' in
the categories represented in Figures response to public comment.
1 through 10 contained in ANSI B30.5- The Agency also references
2000 (i.e., commercial truck-mounted ANSI crane categories to
crane--telescoping boom; commercial illustrate the meaning of
truck-mounted crane--non-telescoping ``type'' in this standard.
boom; crawler crane; crawler crane--
telescoping boom; locomotive crane;
wheel-mounted crane (multiple control
station); wheel-mounted crane--
telescoping boom (multiple control
station); wheel-mounted crane (single
control station); wheel-mounted crane--
telescoping boom (single control
station)) should be used.
The Panel recommends that OSHA ask for OSHA addressed this
public comment on whether the rule recommendation in the
needs to state more clearly that Sec. discussion of proposed Sec.
1926.1427(j)(1)(i) requires more 1926.1430(c), and explained
limited training for operators of that Sec. 1926.1427(j)(1)'s
smaller capacity equipment used in requirement for operator
less complex operations as compared training in ``the information
with operators of higher capacity, necessary for safe operation
more complex equipment used in more of the specific type of
complex situations. equipment the individual will
operate'' addressed the SERs'
concern. However, the Agency
sought public comment on this
issue. OSHA finalized Sec.
1926.1427(j)(1) as proposed
because the comments failed to
explain how the hazards
related to the operation of
smaller equipment differed
from larger equipment. OSHA
then concluded that the
comments also were not
persuasive as to why operators
of smaller capacity equipment
should be allowed limited
training.
The Panel recommends that OSHA consider OSHA addressed this
and ask for public comment on whether recommendation in the
a more limited training program would discussion of proposed Sec.
be appropriate for operations based on 1926.1430(c) requested public
the capacity and type of equipment and comment on the issue. The
nature of operations. comments failed to explain how
the hazards related to smaller
equipment were any different
from larger equipment. OSHA
then concluded that the
comments also were not
persuasive as to why operators
of smaller capacity equipment
should be allowed limited
training.
The Panel recommends that OSHA consider OSHA addressed this
and ask for public comment as to recommendation in the
whether the supervisor responsible for discussion of proposed Sec.
oversight for an operator in the pre- 1926.1430(c). and requested
qualification period (Sec. public comment on the issue.
1926.1427(f)) should have additional In the proposed preamble, OSHA
training beyond that required in the C- stated that, where a
DAC document at Sec. supervisor is not a certified
1926.1427(f)(2)(iii)(B). operator, ``he/she must be
certified on the written
portion of the test and be
familiar with the proper use
of the equipment's controls;
the supervisor is not required
to have passed a practical
operating test.'' OSHA
finalized this requirement
without substantive change in
Sec. 1926.1427(f)(3)(ii) as
proposed because none of the
comments demonstrated a need
to require additional training
for this qualified individual.
The Panel recommends OSHA solicit In the discussion of proposed
comment on whether there are qualified Sec. 1926.1437(n)(2), OSHA
persons in the field with the requested public comment on
necessary expertise to assess how the this issue. Based on these
rated capacity for land cranes and comments, OSHA has concluded
derricks used on barges and other that there are qualified
flotation devices needs to be modified persons with dual expertise,
as required by proposed Sec. and that the requirement in
1926.1437(n)(2). Sec. 1926.1437(n)(2) is
necessary for safety when
equipment is engaged in duty
cycle work.
The Panel also recommends that OSHA
solicit comment on whether it is
necessary, from a safety standpoint,
to apply this provision to cranes used
only for duty cycle work, and if so,
why that is the case, and how ``duty
cycle work'' should be defined.
The Panel recommends that OSHA consider In the discussion of proposed
and ask for comment on whether it Sec. 1926.1440(a), OSHA
would be appropriate to exempt from requested public comment on
the rule small sideboom cranes this issue. These comments did
incapable of lifting above the height not provide any specific
of a truck bed and with a capacity of reason for exempting these
not more than 6,000 pounds. small sideboom cranes and,
therefore, OSHA has not
provided a small capacity
sideboom crane exemption from
this standard.
The Panel recommends that OSHA solicit The length and
public comment on how the proposed comprehensiveness of the
rule could be simplified (without standard is an issue for this
creating ambiguities) and made easier rulemaking. In the proposed
to understand. (Several SERs believed preamble Introduction, OSHA
that the C-DAC document was so long requested public comment on
and complex that small businesses this issue; however, the
would have difficulty understanding it Agency did not receive any
and complying with it.). comments objecting to the
length or clarity of the
overall rule or offer any
suggestions as to how it could
be simplified.
The Panel recommends that OSHA consider OSHA will consider developing
outlining the inspection requirements such an aid as a separate
in spreadsheet form in an Appendix or guidance document.
developing some other means to help
employers understand what inspections
are needed and when they must be done.
[[Page 47918]]
The Panel recommends that OSHA consider Some SERs requested
whether use of the words ``determine'' clarification as to when
and ``demonstrate'' would mandate that documentation was required,
the employer keep records of such believing that the document
determinations and if records would be implicitly requires
required to make such demonstrations. documentation when it states
that the employer must
``determine'' or
``demonstrate'' certain
actions or conditions. OSHA
notes that it cannot cite an
employer for failing to have
documentation not explicitly
required by a standard. See
also the discussion under
proposed Sec. 1926.1402(e).
The Panel recommends soliciting public In the discussion of proposed
comment on whether the word ``days'' Sec. 1926.1416(d), OSHA
as used in Sec. Sec. 1926.1416(d) requested public comment on
and 1926.1416(e) should be clarified this issue. As a clarification
to mean calendar days or business days. in response to the comments
received, OSHA determines that
the term ``days'' refers to
calendar days.
The Panel recommends that OSHA OSHA proposed a scope section,
carefully discuss what is included and Sec. 1926.1400, and
excluded from the scope of this discussed in detail the types
standard. of machinery proposed to be
included and excluded under
this standard. OSHA received
public comments on this
proposed scope, analyzed the
comments, and provided more
discussion of the scope
section in the final preamble.
The Panel recommends that OSHA gather OSHA obtained and evaluated a
data and analyze the effects of study by the Construction
already existing certification Safety Association of Ontario
requirements. showing that Ontario's
certification requirement led
to a substantial decrease in
crane-related fatalities
there. OSHA also examined both
economic data of crane
operator wage rates before and
after the certification
requirements, and fatality
rates before and after the
certification requirements.
This data shows that costs
disruptions were minimal, and
that crane fatalities were
significantly reduced as a
result of the California
certification standard.
The Panel recommends that OSHA consider In the discussion of proposed
excluding and soliciting comment on Sec. 1926.1400(c), OSHA
whether equipment used solely to requested public comment on
deliver materials to a construction this issue. Based on the
site by placing/stacking the materials analysis of the comments
on the ground should be explicitly received, OSHA recognized an
excluded from the proposed standard's exclusion for delivery
scope. materials that should exclude
most true deliveries, while
avoiding creating a loophole
to the standard that would
allow materials-delivery firms
to engage in extensive
construction activities.
The Panel recommends that OSHA should The information and opinions
consider the information and range of submitted by the SERs are part
opinions that were presented by the of the record for this
SERs on the issue of operator rulemaking, and OSHA
qualification/certification when considered them along with the
analyzing the public comments on this other public comments on the
issue. proposed rule.
The Panel recommends that OSHA consider OSHA addressed this
and solicit public comment on recommendation in the
expanding the levels of certification discussion of proposed Sec.
so as to allow an operator to be 1926.1427, and requested
certified on a specific brand's model public comment on the issue.
of crane. Based on these comments, OSHA
is not permitting
certification on a particular
crane model because the body
of knowledge and skills
required to be qualified/
certified on a particular
model of crane is not less
than that needed to be
qualified/certified for that
model's type and capacity.
The Panel recommends that OSHA consider OSHA addressed this
and solicit public comment on recommendation in the
expanding the levels of operator discussion of proposed Sec.
qualification/certification to allow 1926.1427(j)(1), and requested
an operator to be certified for a public comment on this issue.
specific, limited type of Though several commenters were
circumstance. Such a circumstance in favor of this option, they
would be defined by a set of did not explain how these
parameters that, taken together, would lifts could objectively be
describe an operation characterized by distinguished from lifts
simplicity and relatively low risk. generally. Several other
The Agency should consider and solicit commenters indicated that the
comment on whether such parameters types of hazards present and
could be identified in a way that the knowledge needed to
would result in a clear, easily address those hazards,
understood provision that could be remained the same, regardless
effectively enforced. of the capacity of the crane
involved or the ``routine''
nature of the lift (see
discussion of Sec.
1926.1427(a)). Based on these
comments, the Agency has not
promulgated such a provision.
The Panel recommends that OSHA consider OSHA addressed this
and solicit public comment on allowing recommendation in the
the written and practical tests discussion of proposed Sec.
described in Option (1) to be 1926.1427(b)(3), and requested
administered by an accredited public comment on the issue.
educational institution. Several comments were
submitted in favor of allowing
this option; however, they did
not establish that Department
of Education (DOE)
accreditation would guarantee
the same efficacy in
certification as accreditation
as a personnel certification
entity.
The hearing testimony of Dr.
Roy Swift explained the
difference in the types of
accreditation and the reasons
why DOE accreditation would
not adequately address
operator certification issues.
Therefore, OSHA has finalized
this provision as it was
proposed.
The Panel recommends that OSHA solicit In the discussion of proposed
public comment on making it clear Sec. 1926.1427(h)(1), OSHA
that: (1) an employer is permitted to requested public comment on
equip its cranes with manuals re- this issue. Based on the
written in a way that would allow an analysis of the comments
operator with a low literacy level to received, OSHA concludes that
understand the material (such as these manuals may not be re-
substituting some text with pictures written as recommended because
and illustrations), and (2) making it it could cause information
clear that, when the cranes are important for safety to be
equipped with such re-written manuals omitted.
and materials, the ``manuals'' and
``materials'' referred to in these
literacy provisions would be the re-
written manuals.
[[Page 47919]]
The Panel recommends that OSHA explain OSHA will issue a Small
in a Small Business Compliance Guide Business Compliance Guide
that the certification/qualification after the final rule is
test does not need to be administered issued, and will explain these
in English but can be administered in points in the Guide.
a language that the candidate can
read; and that while the employee
would also need to have a sufficient
level of literacy to read and
understand the relevant information in
the equipment manual, that requirement
would be satisfied if the material is
written in a language that the
employee can read and understand.
------------------------------------------------------------------------
IV. Summary and Explanation of the Rule
Authority Citations
For all subparts affected by this rulemaking, the authority
citations have been amended to refer to the documentation that permits
the promulgation of this rule.
Removal of Sec. 1926.31 and Addition of Sec. 1926.6--Incorporation by
Reference
Section 1926.31 of 29 CFR part 1926 provided information about
locating documents incorporated by reference into all of the
construction standards in that part. The Agency is removing this
section and relocating the majority of its text to new 29 CFR 1926.6
for several reasons. First, the change in the location of the section
from Sec. 1926.31 to Sec. 1926.6 is for organizational purposes. New
Sec. 1926.6 is within 29 CFR part 1926 subpart A (``General''), which
is a more logical placement than Sec. 1926.31, which is within subpart
C (``General Safety and Health Provisions''), and is the same section
number (6) as the incorporation reference section for general industry
standards: 29 CFR 1910.6. Second, OSHA is relocating the list of all
documents incorporated by reference into 29 CFR part 1926 from its
previous location in the ``Finding Aids'' of the CFR to Sec. 1926.6
because the Federal Register is no longer publishing the list in the
hardcopy versions of the CFR.\2\
---------------------------------------------------------------------------
\2\ The list will still be available online at http://www.gpoaccess.gov/ecfr from the link to ``Incorporated by
Reference.''
---------------------------------------------------------------------------
The Agency is restructuring the text previously located in Sec.
1926.31 to make Sec. 1926.6 parallel 29 CFR 1910.6, which lists the
documents incorporated by reference into the general industry standards
in 29 CFR part 1910. OSHA is not including the text formerly in 29 CFR
1926.31(b), which could be read as implying that OSHA intended to
incorporate into its standards, without following the procedures
specified in 1 CFR part 51, revised versions of documents previously
incorporated by reference.
OSHA determined that the addition of Sec. 1926.6 and the removal
of Sec. 1926.31 are not subject to the procedures for public notice
and comment specified by sec 4 of the Administrative Procedures Act (5
U.S.C. 553), sec. 6(b) of the Occupational Safety and Health Act of
1970 (29 U.S.C. 655(b)), and 29 CFR part 1911. New Sec. 1926.6, like
the Sec. 1926.31 it replaces, is a rule of agency organization,
procedure, or practice within the meaning of 5 U.S.C. 553(b)(3)(A), and
the addition of Sec. 1926.6 constitutes a technical amendment that
does not affect or change any existing rights or obligations. No member
of the regulated community is likely to object to it. In conclusion,
OSHA finds good cause that the opportunity for public comment is
unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B), 29 U.S.C.
655(b), and 29 CFR 1911.5.
In addition to relocating the list of documents from the Finding
Aids list, OSHA is adding to the list of documents incorporated by
reference those documents that are newly incorporated by reference in
these final rules. The Federal Register approved these documents, which
are listed as follows, for incorporation by reference as of November 8,
2010: ANSI B30.5-1968; ASME B30.2-2005; ASME B-30.5-2004; ASME B30.7-
2001; ASME B30.14-2004; AWS D1.1/D1.1M:2002; ANSI/AWS D14.3-94; BS EN
13000:2004; BS EN 14439:2006; ISO 11660-1:2008(E); ISO 11660-2:1994(E);
ISO 11660-3:2008(E); PCSA Std. No. 2 (1968); SAE J185 (May 2003); SAE
J987 (Jun. 2003); and SAE J1063 (Nov. 1993).
Subpart L--Scaffolds
Amendments to Sec. 1926.450
The agency is removing the reference to former Sec. 1926.550(g)
from this section because former Sec. 1926.550(g) has been
redesignated and reserved by this rulemaking. Section 1926.450(a)
explains that this section applies to all scaffolds used in work
covered by subpart L. Prior to the promulgation of this final rule, it
referenced former Sec. 1926.550(g) to explain that Sec. 1926.450 did
not apply to crane- or derrick-suspended personnel platforms. Prior to
the promulgation of this final rule, former Sec. 1926.550(g)(2)
regulated crane- or derrick-suspended personnel platforms. Personnel
platforms suspended by cranes or derricks are now regulated by Sec.
1926.1431. This change does not affect the requirements of Sec.
1926.450(a), does not change any existing rights or obligations, and no
member of the regulated community is likely to object to it. OSHA,
therefore, finds good cause that the opportunity for public comment is
unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B), 29 U.S.C.
655(b), and 29 CFR 1911.5.
Subpart M--Fall Protection
Amendments to Sec. 1926.500
Prior to the promulgation of this final rule, Sec.
1926.500(a)(2)(ii) stated that subpart N set forth the workplaces,
conditions, operations, and circumstances for which fall protection
must be provided for employees working on ``certain cranes and
derricks.'' Because subpart CC now provides comprehensive requirements
for the provision of fall protection to workers on equipment covered by
subpart CC, the Agency amended Sec. 1926.500(a)(2)(ii) by replacing
the reference to subpart N with a reference to subpart CC and deleting
the word ``certain.''
Section 1926.500(a)(3) provided that the requirements for the
installation, construction, and proper use of fall protection for
construction workers were set forth in Sec. 1926.502 of subpart M,
with certain exceptions. OSHA amended Sec. 1926.500(a)(3) to provide
an exception for steps, handholds, ladders, and grabrails/guardrails/
railings required by subpart CC because the criteria for those forms of
fall protection are provided in subpart CC. This exception, Sec.
1926.500(a)(3)(v), also clarifies that Sec. Sec. 1926.502(a), (c)-(e),
and (i) apply unless otherwise stated in subpart CC, and that no other
paragraphs of Sec. 1926.502 apply to subpart CC. The exception reduces
the
[[Page 47920]]
extent to which Sec. 1926.502 applies to work covered under subpart
CC, and clarifies that subpart CC generally sets forth the criteria for
the fall protection systems required under subpart CC.
Section 1926.500(a)(4) stated that Sec. 1926.503 sets forth the
requirements for training in the installation and use of fall
protection systems, except in relation to steel erection activities.
The Agency added the phrase ``and the use of equipment covered by
subpart CC'' at the end of the exception to make clear that the fall
protection training requirements in Sec. 1926.503 of subpart M do not
apply to fall protection systems when used to comply with subpart CC.
Training for fall protection systems required by subpart CC is governed
by Sec. 1926.1423(k).
Subpart N--Helicopters, Hoists, Elevators, and Conveyors
The heading of subpart N has been changed to ``Helicopters, Hoists,
Elevators, and Conveyors.'' The revision of the heading reflects both
the equipment that is now regulated by subpart N and the removal of
sections regulating cranes and derricks from subpart N to subpart CC.
Amendments to Sec. 1926.550
Cranes and derricks used in construction had been regulated by
Sec. 1926.550. Subpart CC is now the applicable standard for
regulating the use of cranes and derricks in construction. Section
1926.550 has been redesignated as Sec. 1926.1501 and reserved.
Amendments to Sec. 1926.553
OSHA revised Sec. 1926.553 to include a new provision, Sec.
1926.553(c). This section explains that Sec. 1926.553 does not apply
to base-mounted drum hoists used in conjunction with derricks. Instead,
base-mounted drum hoists used with derricks must conform to the
requirements of Sec. 1926.1436. This change was made in response to a
request by a commenter who wanted to clarify that the requirements for
base-mounted drum hoists used with derricks could be found in new
subpart CC. (ID-0130.1.) No information was submitted to the record
that indicates OSHA should not make the revision to Sec. 1926.553.
OSHA determined that the revision addresses the commenter's
concerns regarding the applicability of Sec. 1926.553 and enhances the
clarity of the final rule. This revision ensures that base-mounted drum
hoists used in the design of derricks meet the updated requirements of
ASME B30.7-2001, which is referenced in Sec. 1926.1436. The older ANSI
B30.7-1968, which is referenced in Sec. 1926.553, continues to apply
to all base-mounted drum hoists not used in conjunction with derricks.
Subpart O--Motorized Vehicles, Mechanical Equipment, and Marine
Operations
Amendments to Sec. 1926.600
This section regulates motor vehicles, mechanized equipment, and
marine operations. Prior to the promulgation of this final rule, Sec.
1926.600(a)(6) referenced Sec. 1926.550(a)(15), which has been
redesignated and reserved. Because the Agency inadvertently did not
propose any revision of Sec. 1926.600(a)(6), OSHA is preserving the
same requirements imposed by former Sec. 1926.550(a)(15) pursuant to
this section by incorporating language substantively identical to that
of former Sec. 1926.550(a)(15) into revised Sec. 1926.600(a)(6). The
revision of Sec. 1926.600(a)(6) does not alter any of the substantive
requirements of that section, does not change any existing rights or
obligations, and no member of the regulated community is likely to
object to it. OSHA, therefore, finds good cause that the opportunity
for public comment is unnecessary within the meaning of 5 U.S.C.
533(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.
Subpart R--Steel Erection
Amendments to Sec. 1926.753 Hoisting and Rigging
With the exception of former Sec. 1926.550(g)(2), Sec.
1926.753(a) applied all of the provisions of former Sec. 1926.550 to
hoisting and rigging during steel erection. Similarly, Sec.
1926.753(c)(4) allowed cranes and derricks to hoist workers on a
personnel platform in accordance with all of former Sec. 1926.550
except former Sec. 1926.550(g)(2). Because former Sec. 1926.550 has
been redesignated and reserved, Sec. 1926.753 has been revised to
avoid changing the requirements of that section. Section 1926.753(a)
applies all of subpart CC except Sec. 1926.1431(a) to hoisting and
rigging, and Sec. 1926.753(c)(4) applies all of Sec. 1926.1431 except
Sec. 1926.1431(a). These two paragraphs of Sec. 1926.753 reference
Sec. 1926.1431(a) because the requirement formerly found in Sec.
1926.550(g)(2) is now contained in Sec. 1926.1431(a) of subpart CC.
Subpart S--Underground Construction, Caissons, Cofferdams, and
Compressed Air
Amendments to Sec. 1926.800
This section regulates hoisting unique to underground construction.
Prior to the promulgation of this final rule, Sec. 1926.800(t) of this
section referenced former Sec. 1926.550(g), which has been
redesignated Sec. 1926.1501(g). The Agency intended that the reference
to former Sec. 1926.550(g) be replaced by a reference to new subpart
CC, but inadvertently omitted that action from the Federal Register
notice for the proposed rule. To avoid any potential notice issues that
might arise if the Agency substituted a reference to subpart CC in
place of the prior reference to former Sec. 1926.550(g), the Agency
has instead elected to redesignate Sec. 1926.550 as Sec. 1926.1501 in
new subpart DD, which has been created for this purpose. The Agency
intends to revisit this issue in the near future.
References to former Sec. 1926.550(g) have been replaced with
references to Sec. 1926.1501(g). This redesignation of Sec. 1926.550
and the replacement of references do not alter any of the substantive
requirements of Sec. 1926.800(t), do not change any existing rights or
obligations, and no member of the regulated community is likely to
object to it. OSHA, therefore, finds good cause that the opportunity
for public comment is unnecessary within the meaning of 5 U.S.C.
553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.
Subpart T--Demolition
Amendments to Sec. Sec. 1926.856 and 1926.858
These sections regulate the use of cranes and in demolition work.
Prior to the promulgation of this final rule, Sec. Sec. 1926.856(c)
and 1926.858(b) referenced subpart N, part of which (former Sec.
1926.550) has been redesignated as Sec. 1926.1501. The Agency intended
for the reference to subpart N in Sec. 1926.856(c) to be supplemented
with a reference to new subpart CC, and intended that the reference to
subpart N in Sec. 1926.858(b) be replaced by a reference to new
subpart CC, but inadvertently omitted that action from the Federal
Register notice for the proposed rule. To avoid any potential notice
issues that might arise if the Agency substituted a reference to new
subpart CC in place of the prior reference to subpart N, the Agency has
instead elected to redesignate Sec. 1926.550 as Sec. 1926.1501 in
[[Page 47921]]
a new subpart DD which has been created for this purpose. The Agency
intends to revisit this issue in the near future.
References to subpart N in Sec. Sec. 1926.856(c) and 1926.858(b)
have been supplemented or replaced with references to Sec. 1926.1501.
This redesignation of Sec. 1926.550 and the replacement of references
do not alter any of the substantive requirements of Sec. Sec.
1926.856(c) and 1926.858(b), do not change any existing rights or
obligations, and no member of the regulated community is likely to
object to it. OSHA, therefore, finds good cause that the opportunity
for public comment is unnecessary within the meaning of 5 U.S.C.
553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.
Subpart V--Power Transmission and Distribution
Amendment to Sec. 1926.952
The subpart V provisions have been changed to reflect the
terminology used in the scope section of this standard and its new
subpart designation. Accordingly, Sec. 1926.952(c), which referenced
subpart N with respect to derrick trucks and cranes, has been revised
to reference subpart CC. Prior to this final rule, Sec. Sec.
1926.952(c)(1)(i) and (ii) addressed minimum clearance distances.
Because Sec. Sec. 1926.1407 through 1926.1411 address minimum
clearance distances when clearance distances in Table V-1 would apply
to derrick trucks and cranes used in subpart V work, Sec. Sec.
1926.952(c)(1)(i) and (ii) have been deleted.
In conformance with language in Sec. 1926.1400(c)(4), the agency
is adding new Sec. 1926.952(c)(2) into subpart V. It states that
digger derricks used for augering holes for electrical poles, placing
and removing the poles, or handling associated materials to be
installed or removed from the poles must comply with 29 CFR 1910.269.
This provision ensures comparable safety requirements exist for digger
derricks performing electrical pole work.
What was Sec. 1926.952(c)(2) prior to the promulgation of this
final rule has been redesignated Sec. 1926.952(c)(3). Former
Sec. Sec. 1926.952(c)(2)(i) and (ii) listed precautions for operating
mechanical equipment closer to energized power lines than allowed by
Sec. 1926.950(c). The precautions (using an insulated barrier and
grounding the equipment) that were specified in Sec. Sec.
1926.952(c)(2)(i) and (ii) are now required under Sec. 1926.1410(d)
when equipment used in subpart V work is operated closer than the Table
V-1 clearances. Since these precautions are now required by Sec.
1926.1410(d), OSHA is deleting them from subpart V. As a result of that
deletion, former Sec. Sec. 1926.952(c)(2)(iii) and (iv) are
redesignated Sec. Sec. 1926.952(c)(3)(i) and (ii).
OSHA is also adding a note after new Sec. 1926.952(c)(3) to cross-
reference the safe harbor in Sec. 1926.1400(g), which provides that
employers performing subpart V work have the option of complying with
29 CFR 1910.269(p) in lieu of the requirements in Sec. Sec. 1926.1407
through 1926.1411 of new subpart CC. For additional information, see
the discussion of Sec. 1926.1400(g) in the preamble to this final
rule.
Subpart X--Stairways and Ladders
Amendment to Sec. 1926.1050 Scope, Application, and Definitions
Applicable to This Subpart
This section applies the provisions of subpart X to all stairways
and ladders used in construction. However, C-DAC concluded that the
OSHA requirements of subpart X did not account for the characteristics
of the equipment that would be regulated by subpart CC. OSHA agreed
with the committee and, accordingly, is amending Sec. 1926.1050(a) to
explain that subpart X does not apply to integral components of
equipment covered by subpart CC. It further explains that only subpart
CC establishes the circumstances when ladders and stairways must be
provided on equipment covered by subpart CC. This revision is also
discussed in the preamble section for Sec. 1926.1423(c).
Appendix A to Part 1926 Designations for General Industry Standards
Incorporated Into Body of Construction Standards
OSHA modified Appendix A to part 1926. Before the promulgation of
this final rule, Appendix A referred to former Sec. 1926.550(a)(19),
which has been redesignated and reserved. Therefore, the reference to
this section and the reference to the general industry standard it
incorporated, Sec. 1910.184(c)(9), have been deleted. This deletion is
a technical and conforming change, does not change any existing rights
or obligations, and no member of the regulated community is likely to
object to it. OSHA, therefore, finds good cause that the opportunity
for public comment is unnecessary within the meaning of 5 U.S.C.
553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5
29 CFR Part 1926 Subpart CC
The Agency is promulgating Subpart CC for regulating the use of
cranes and derricks in construction. Cranes and derricks used in
construction had been regulated by Sec. 1926.550. Accordingly, Sec.
1926.550 has been redesignated and reserved.
Section 1926.1400 Scope
As explained in the proposed rule, C-DAC decided to describe the
scope of the rule with both a functional description (``power-operated
equipment used in construction that can hoist, lower, and horizontally
move a suspended load'') together with a non-exclusive list of the
types of existing equipment that are covered.\3\ By defining the scope
in this way, C-DAC tried to provide the clearest possible notice as to
the equipment that is covered by the standard while also including new
and/or other existing equipment that is similar to the listed examples.
---------------------------------------------------------------------------
\3\ The scope of the standard with respect to some of the listed
equipment is further delineated in the section of the standard that
specifically relates to that equipment (for example, Sec.
1926.1436, Derricks and Sec. 1926.1438, Overhead & Gantry Cranes).
---------------------------------------------------------------------------
One commenter objected to this approach, believing that the
approach does not provide the regulated community with clear notice of
the bounds of the regulated equipment. (ID-0286.1.) This commenter
recommended that OSHA avoid this perceived notice problem by limiting
the scope of the standard to equipment described in ASME B30 standards.
It recommended adding the words ``and is described in American Society
of Mechanical Engineers ASME B30 standards'' at the end of the first
sentence of proposed paragraph (a) of this section.
OSHA disagrees with this commenter that paragraph (a), when read
together with the list of exclusions in paragraph (c) of this section,
does not provide clear notice as to what equipment is covered and what
is excluded. As explained earlier, paragraph (a) is designed to make
clear the types of existing equipment that are covered while also
covering newly-developed equipment that is similar to the listed
examples. The approach suggested by the commenter would limit any
coverage of newly developed equipment to any such equipment that might
be included in an unspecified future ASME B30 standard, without the
opportunity for OSHA to assess that equipment to determine whether its
exemption from subpart CC would be appropriate. OSHA concludes that
this approach may unduly limit the scope of subpart CC. In addition, it
would contradict the intent of C-DAC with respect to several specific
types of equipment. For example, at least three
[[Page 47922]]
types of covered equipment that meet the functional definition in
paragraph (a), dedicated pile drivers,\4\ digger derricks (see the
discussion of digger derricks below under paragraph (c)(4)), and
straddle cranes are not covered in ASME B30 standards, while the ASME
B30 standards include equipment (e.g., stacker cranes) not covered
under this standard. Thus, adopting the commenter's suggestion would
exclude certain equipment that C-DAC intended to include and would
introduce ambiguity over whether certain types of equipment that C-DAC
intended to exclude are included. Where the commenter has not made a
compelling argument as to why the standard would be improved by
adopting the ASME standards, OSHA defers to C-DAC's expertise on this
issue.
---------------------------------------------------------------------------
\4\ The proposed rule explained in detail why C-DAC decided to
include dedicated pile drivers under this rule even though they are
not traditionally considered to be cranes or derricks (see 73 FR
59727, Oct. 9, 2008).
---------------------------------------------------------------------------
A commenter objected to defining the scope of the standard in terms
of types of equipment, saying that it represented an unexplained
departure from OSHA's practice of describing the scope of construction
standards in terms of conditions and practices. (ID-0203.1.) Contrary
to this commenter's belief, OSHA has often defined construction
standards in terms of equipment. See, e.g., subpart L, ``Scaffolds.''
Indeed, this rule for cranes and derricks replaces a previous rule for
cranes and derricks at former Sec. 1926.550, the scope of which was
also defined in terms of types of equipment.
Several commenters asked OSHA to clarify the meaning of
``construction'' as it is used in paragraph (a) of this section. (ID-
0147.1; -0165.1; -0214.1; -0235.1.) Some of these comments asked OSHA
to clarify whether the use of lifting equipment to deliver materials to
a construction site is covered under the standard. That issue is
addressed below and is clarified in a new Sec. 1926.1400(c)(17). One
commenter noted that OSHA draws a distinction between construction work
and routine maintenance and asked for examples of activities that fall
under ``construction'' and under ``maintenance.'' (ID-0147.1.) OSHA
notes that considerable guidance on this distinction is already
available. Several interpretive documents that discuss the distinction
between construction and maintenance in the context of specific
inquiries and issues are available on OSHA's Web site. See, e.g.,
November 18, 2003, Letter of Interpretation to Raymond V. Knobbs,
Minnotte Contracting Corporation, available at http://www.osha.gov;
February 1, 1999, Letter of Interpretation to Randall A. Tindell,
Williams Power Company, available at http://www.osha.gov; August 11,
1994, Memorandum from James W. Stanley, Deputy Assistant Secretary,
available at http://www.osha.gov.
Two commenters objected to the inclusion of overhead and gantry
cranes on the basis that such cranes are rarely used in construction
and that a number of the most significant provisions of the standard,
such as those covering ground conditions and proximity to power lines,
do not apply to overhead and gantry cranes. (ID-0122.0; -0191.1.) OSHA
agrees that overhead and gantry cranes that are installed in general
industry workplaces and used only incidentally for construction work in
such facilities should be covered under the general industry standard.
This final standard accommodates this objective by providing, in Sec.
1926.1438, that overhead and gantry cranes that are permanently
installed in a facility are covered by the general industry standard
even though used in construction work, such as renovating the facility
in which they are installed. However, under Sec. 1926.1438, overhead
and gantry cranes that are not permanently installed in a facility,
such as a launching gantry used in the construction of a bridge, are
covered by this standard. Such cranes are intended to be used for
construction work, present many of the same hazards as other equipment
used in construction work, and are properly regulated under this
construction standard.
No other comments were received objecting to the inclusion of items
on the non-exclusive list in paragraph (a).
Several commenters asked that construction work performed in
certain industries be excluded from the standard. The industries making
such requests include railroads (ID-0170.1; -0176.1); shipbuilders (ID-
0195.1); electric utilities (ID-0203.1; -0215.1); and companies that
install signs in buildings under construction (ID-0189.1). For all of
these industries, the commenters identify what they believe are
specific problems in applying the standard to their activities and
suggest that the most direct way of solving those problems is to
exclude them from the standard entirely. For the following reasons,
OSHA declines to exempt construction work performed by employers in
these industries from the scope of this standard.
Two commenters ask that work along railroad rights-of-way be
excluded from the standard. (ID-0170.1; -0176.1.) They claim that a
number of provisions in the proposed rule are not suitable for railroad
operations, including: (1) The operator qualification/certification
requirement because no current certifying organization tests for the
type of cranes used by railroads; (2) the requirements for ground
conditions, work area control, and level positioning; and (3) the
requirement for a dedicated channel if electronic signals are used.
They also say that most such work is maintenance rather than
construction. OSHA concludes there is merit in some of the specific
concerns raised by these commenters and addresses those concerns in the
sections of the standard pertaining to them. However, OSHA sees no
basis for excluding work along railroad rights-of-way from this rule.
Some such work, such as the replacement or renovation of automotive
bridges over railroads, is plainly ``construction work'' that is
appropriately regulated under this construction standard.
Several commenters raised concerns with the effect that this
rulemaking would have on electric utilities, including: (1) The limited
exclusion for digger derricks used in the industry; (2) the proposed
requirement that employers performing subpart V work show that it is
infeasible to maintain the normal clearance from energized power lines
before they can use the less restrictive clearances in subpart V; (3)
application of the operator qualification/certification requirement to
the industry; and (4) the duties imposed on utility employers when
other employers operate equipment near power lines owned or operated by
the utility employers. (ID-0201.1; -0203.1; -0215.1.) The commenters
suggest that all of these issues can be resolved by excluding utilities
entirely from the standard.
OSHA does not agree that this limited group of concerns justifies
completely excluding utilities from this standard. The use of cranes in
utility construction work has always been subject to the construction
crane standards (see Sec. 1926.952(c)), and these commenters have not
advanced a persuasive argument to discontinue this practice. The
specific issues addressed by these commenters with respect to the
application of this rule to electric utilities will be addressed below
in sections dealing with those issues.
A commenter that operates shipyards in three states asks that
shipyards be excluded from the standard. (ID-0195.1.) This commenter
states that it currently has an excellent crane safety program that is
based on general industry and shipyard standards, and asserts that its
program would be adversely affected by the need to
[[Page 47923]]
administer a separate program for the ``small percentage of lifts''
that would fall under the construction standard. The commenter notes
that the proposed standard has partially addressed its concern by
providing that overhead and gantry cranes that are permanently
installed in a facility are subject to the general industry standard
for such cranes rather than this proposed construction standard. It
states that shipyards ``could potentially'' use other types of cranes
to support construction activities at its sites.
OSHA finds that the proposed rule appropriately addressed this
issue. Overhead and gantry cranes are one of the most common type of
crane used in shipyards and, as the commenter notes, Sec. 1926.1438
allows employers with permanently installed overhead and gantry cranes
to continue to follow the general industry standard. Moreover, 29 CFR
1915.2(a), provides that the shipyard standards ``apply to all ship
repairing, shipbuilding and shipbreaking employments and related
employments.'' Therefore, some work that would otherwise be considered
construction work and subject to subpart CC is in fact included in such
``related employments.'' Therefore, subpart CC will likely affect
shipyards only to a limited extent.
While it is understandable that the commenter may find it more
convenient to administer a single program addressing only the general
industry and shipyard standards, it has not substantiated its claim
that the integration of this standard into that program or
implementation of an additional program addressing this standard would
not improve safety. The Agency notes that the commenter's construction
operations have historically been subject to part 1926 subpart N.
A representative of employers who install signs in buildings asks
that sign erection be excluded from the standard. (ID-0189.1.) This
commenter says that sign erection is low-risk work because most signs
are relatively light (rarely exceeding 2,000 pounds) and the equipment
used is ``light duty'' equipment with relatively simple operating
controls. For heavier signs, it states that sign installers typically
hire crane companies that employ certified and professional crane
operators. The commenter notes that proposed Sec. 1926.1441 would
exempt equipment with a rated capacity of 2,000 pounds or less from the
standard but says this would not provide the industry with relief
because sign installers must use higher capacity cranes due to the
reach needed to install signs. Although it asks for complete exclusion,
the commenter makes clear that its objection pertains to the
requirement for operator qualification/certification in Sec.
1926.1427. It asks for less stringent requirements for its industry,
such as employer self-certification and a broader range of training and
certifying entities, such as accredited educational institutions.
OSHA declines to exempt sign installation from the standard. Using
cranes for sign installation on construction sites involves the same
hazards as when used for other purposes. Examples include installation
of signs near power lines; operation of the crane at an extended radius
due to the need for long reach, which can heighten the risk of tip-
over; the risk to the sign installers of losing the load; failures due
to poor equipment condition or miscommunication between the operator
and signal person. Finally, the commenter's objections to the operator
qualification/certification requirements for its industry parallels
objections raised by others and will be addressed in the discussion of
Sec. 1926.1427.
A commenter representing the propane gas industry says that
industry does not use cranes in ``construction work'' and asks OSHA to
``affirm'' this in the final rule. (ID-0198.1.) The commenter asserts
that the industry installs propane storage tanks ranging from 120 to
5,000 gallons capacity using truck-mounted cranes to lift and place the
tanks onto supports.
From this limited description of the industry's use of cranes, it
is likely that at least some of the industry's work is construction
work. If the site at which the tank is installed is a building under
construction, installation of a propane tank would qualify as
construction work, just as the installation of an air conditioning unit
on that site would be construction work. At the other extreme,
replacing a small tank at an existing site with a new tank of the same
capacity would be considered general industry work. In sum, based on
the information provided, it appears that some of the industry's work
is construction work and some is general industry. OSHA therefore
cannot ``affirm'' that the propane industry is excluded from the
standard.
For the foregoing reasons, OSHA is promulgating paragraph (a) as
proposed except for a grammatical correction to clarify that the
standard applies to only equipment used for construction activities.
Employers who use covered equipment for both general industry work and
construction work would not be required to comply with subpart CC when
the equipment is used for general industry work and not construction
work.
Paragraph (b)
Proposed paragraph (b) of this section provided that equipment
covered by paragraph (a) remains within the scope of the standard when
used with attachments that are either ``crane-attached or suspended.''
As defined in Sec. 1926.1401, an ``attachment'' is ``any device that
expands the range of tasks that can be done by the equipment. Examples
include, but are not limited to: an auger, drill, magnet, pile-driver,
and boom-attached personnel platform.'' C-DAC decided to include such
attachments, even though they might not use the crane's hoisting
mechanism, to avoid the confusion that would result if the equipment
moved in and out of coverage of the rule as attachments are put on and
taken off. Furthermore, most of the operational characteristics and
hazards of the equipment remain the same while the attachment is in
use. No comments were received regarding this paragraph, and it is
being promulgated as proposed.
Paragraph (c)
Proposed paragraph (c) of this section listed machinery that would
be specifically excluded from the scope of the rule. As discussed
below, several of these proposed exclusions generated public comment.
Proposed paragraph (c)(1) provided that machinery otherwise
included under Sec. 1926.1400(a) but ``converted or adapted for non-
hoisting/lifting use'' is excluded. Power shovels, excavators and
concrete pumps are listed as nonexclusive examples of such
``conversions/adaptations'' or modified machinery.
A commenter suggested that OSHA consider including concrete pumping
trucks because they are configured as cranes and suspend loads over a
distance. (ID-0178.1.) C-DAC considered this issue but decided not to
include them. While a concrete pumping truck does pose some of the same
hazards as a crane, its load (i.e., the concrete being pumped) is
carried in a piping system affixed to its boom, rather than being
suspended. Consequently, it does not fit the functional definition in
paragraph (a) of this section. This commenter noted that, like a crane,
a concrete pumping truck may have outriggers or be located near a power
line. However, this standard is designed to address the hazards that
are specific to cranes and derricks rather than to address stability
and power line
[[Page 47924]]
clearance issues for all types of construction equipment.
A commenter asked that a type of equipment for which it holds
patent rights, the ``Linemaster Robotic Arm,'' be excluded. (ID-
0209.1.) According to the commenter, this equipment is a hydraulically
powered, boom mounted, rotating and telescopic robotic arm that is used
to separate live power lines from poles. The commenter states that
crews using the robotic arm use a crane only as a non-hoisting support
machine, and that the crane cannot be used to lift or haul materials
because its winch line is removed. The commenter believes that such
equipment should be excluded under paragraph (c)(1) because the crane
has been converted to a non-hoisting use.
OSHA does not agree with this commenter. As discussed above, under
paragraph (b) of this section, equipment otherwise covered by the
standard remains covered when used with attachments that are either
``crane-attached or suspended.'' The description of the robotic arm
supplied by the commenter suggests that the robotic arm fits within
paragraph (b). As explained above, paragraph (b) is designed to avoid
having equipment move in and out of coverage as attachments are added
and removed. Excluding a crane when a robotic arm is attached would be
inconsistent with that objective. Moreover, as the preamble to the
proposed rule stated, even when a crane is being used for a non-
hoisting purpose, its hoisting capability is still present, and most of
its operational characteristics and hazards remain the same while the
attachment is in use.
For those reasons, and those explained in the preamble to the
proposed rule, paragraph (c)(1) is promulgated as proposed (see 73 FR
59729, Oct. 9, 2008).
Proposed paragraph (c)(2) excluded power shovels, excavators, wheel
loaders, backhoes, loader backhoes, and track loaders. It provided that
such machinery is also excluded when used with chains, slings or other
rigging to lift suspended loads. These types of material handling
machinery were excluded even though, when used to lift suspended loads,
they present hazards similar to those associated with equipment covered
by the proposed rule. However, C-DAC proposed to exclude them because
it determined that the differences between the equipment included in
the standard and the material handling machinery that is excluded are
such that one standard could not be readily designed to suit both. OSHA
agrees. It should be noted that another construction standard, Sec.
1926.602 in subpart O--Motor Vehicles, Mechanized Equipment, and Marine
Operations, covers the material handling equipment that is excluded
from this standard. No comments were received concerning paragraph
(c)(2), and it is promulgated as proposed.
Proposed paragraph (c)(3) excluded automotive wreckers and tow
trucks ``when used to clear wrecks and haul vehicles'' (see explanation
at 73 FR 59729, Oct. 9, 2008). No comments were submitted on this
paragraph, and it is promulgated as proposed for the reasons provided
in the preamble to the proposed rule.
Proposed paragraph (c)(4) would have excluded service trucks with
mobile lifting devices that are designed specifically for use in the
power line and electric industries when those trucks are used either to
auger holes to set power and utility poles or to handle associated
materials that will be installed or removed from utility poles. A
digger derrick, or radial boom derrick, is an example of such a truck.
This machinery is currently covered by subpart N, with the
exception of certain provisions, by virtue of Sec. 1926.952(c). We
note that ASME B30.5-2004 excludes digger derricks and ``cranes
manufactured specifically for, or when used for, energized electrical
line service'' from the scope of that industry consensus standard.
Digger derricks are a specialized type of equipment designed to
install utility poles. They are equipped with augers to drill holes for
the poles and with a hydraulic boom to lift the poles and set them in
the holes. The booms can also be used to lift objects other than poles,
and electric utilities use them both to place objects on utility poles
and for general lifting purposes at worksites such as utility
substations. (ID-0139.1.) Digger derricks have rated capacities as high
as 36,000 pounds. (ID-0369.1.) When electric utilities are finished
with them, they sell them to other construction companies. (ID-0341.)
Since its promulgation in 1972, subpart V (``Power Transmission and
Distribution'') has excluded digger derricks from certain requirements
of subpart N. C-DAC considered whether to continue special treatment of
digger derricks used in subpart V work and proposed to exclude digger
derricks used in Subpart V work from the standard to the extent they
are used to auger holes and to handle associated materials to be
installed on or removed from utility poles. C-DAC determined that such
an exclusion was appropriate because of the ``narrow, specialized range
of activities and circumstances in which such trucks are used'' (73 FR
59729, Oct. 9, 2008).
Most of the commenters on this issue favored an exclusion for
digger derricks but asked that the proposed exclusion be broadened to
all uses of digger derricks by electric utilities. (ID-0129.1; -0139.1;
-0144.1; -0162.1; -0200.1; -0215.1; -0217.1; -0226.) Several noted that
the proposed exclusion would lead to the incongruous result in that
digger derricks would move in and out of coverage depending on the task
they are performing. Noting that most of the exclusions developed by C-
DAC applied to types of equipment rather than specific tasks, a
commenter stated that C-DAC contradicts itself by proposing a task-
related exclusion instead of an equipment-related exclusion. (ID-
0200.1.) One commenter recommended that the proposed exclusion be
extended to the setting and removal of poles. (ID-0209.1.) Another
opposed any exclusion for digger derricks because digger derricks work
in proximity to power lines. (ID-0092.20.)
Some commenters suggested that any exclusion for digger derricks
should also apply to other industries. One stated that a similar
exclusion should apply to digger derricks used to auger holes and set
poles in the telecommunication industry. (ID-0234.) Another contended
that it would be inconsistent to exclude a digger derrick used to set
an electric utility pole but not a telecommunications pole. (ID-
0129.1.) The same commenter also said that digger derricks are used to
set poles for outdoor lighting along roadways and indicated that the
exclusion should apply to such use. A commenter in the railroad
industry said that the exclusion should apply to digger derricks used
in the railroad industry to install utility and communication signal
poles. (ID-0176.1.)
Certain commenters criticized the description of the equipment in
proposed paragraph (c)(4), which described the equipment subject to the
exclusion as ``service trucks with mobile-lifting devices designed
specifically for use in the power line and electric service industries,
such as digger derricks (radial boom derricks).'' One objected to the
limitation that the equipment be ``designed specifically for use in the
power line and electric service industries'' on the basis that
employers should not be required to show the purpose for which their
equipment is designed. (ID-0215.1.) Another, a witness at the public
hearing, stated that the term ``service truck'' used in the proposal
has no commonly
[[Page 47925]]
understood meaning in the industry. (ID-0342.)
OSHA agrees with these commenters that the description of the
excluded machinery should be clarified and is using the term ``digger
derrick'' exclusively to describe the equipment that is subject to the
exclusion. The term ``digger derrick'' is well understood in the
industry and is the only term used to describe the equipment by the
ANSI standard applicable to such equipment, ANSI/ASSE A10.31-2006,
Safety Requirements, Definitions, and Specifications for Digger
Derricks. Accordingly, OSHA concludes that using ``digger derrick''
without reference to the purpose for which the equipment is designed or
synonyms such as ``service truck'' is the clearest way to describe the
exclusion. The Agency notes that despite its name, a ``digger derrick''
is not a ``derrick'' as defined in Sec. 1926.1436(a). Thus, the
additional requirements applicable to derricks in Sec. 1926.1436 do
not apply to digger derricks, and the exception from operator
certification requirements in Sec. 1926.1427(c) for derrick operators
does not apply to operators of digger derricks included within the
scope of Sec. 1926 subpart CC.
OSHA also agrees with the majority of commenters who argued that
the exclusion should be broadened so that it encompasses all digger
derrick work on electric utility poles. Digger derricks are
specifically intended to be used for augering holes for utility poles,
placing the poles in the holes (and removing them when necessary), and
handling materials being installed on or removed from the poles.
Excluding all of these uses will minimize the incongruous result of
having digger derricks move in and out of coverage while they are being
used for their intended purposes at the same worksites. OSHA also
agrees with those commenters who argued that the exclusion should
encompass similar work on poles carrying telecommunication lines, since
the rationale described above is equally applicable.
In addition, OSHA has drafted the exclusion in the final rule so
that it is based on the type of work done with the digger derrick,
rather than the industry classification of the employer performing the
work. For example, digger derricks used by a railroad to install poles
for telecommunication lines would be excluded.
When digger derricks are used in the operation and maintenance of
existing electric power lines, they are subject to the general industry
standard at Sec. 1910.269. OSHA is currently conducting another
rulemaking designed to avoid inconsistencies between subpart V of the
construction standards, which applies to power line construction work,
and Sec. 1910.269 (see 70 FR 34821, Jun. 15, 2005). Pending the
completion of that rulemaking, digger derricks excluded from this rule
will be subject to the same requirements regardless of whether they are
used for work subject to subpart V or work subject to Sec. 1910.269.
To ensure that digger derricks excluded from this rule (Subpart CC) are
subject to appropriate safety requirements, OSHA is including language
in Sec. 1926.1400(c)(4), and is amending subpart V, to explicitly
state that the activities from which digger derricks are excluded from
subpart CC are subject to applicable provisions of Sec. 1910.269.
Those rules include Sec. 1910.269(p) (mechanical equipment), Sec.
1910.269(a)(2) (training), and Sec. 1910.269(l) (work on or near
exposed energized parts).
Similarly, digger derricks used in general industry
telecommunication work are subject to the general industry standard at
Sec. 1910.268. Section 1910.268 includes requirements for working near
energized power lines and requirements pertaining to the operation of
the equipment, such as the need to comply with manufacturer load
ratings. The requirements applicable to digger derricks under the
general industry telecommunications standard (Sec. 1910.268) are
comparable to those in the general industry electric utility standard
(Sec. 1910.269). Accordingly, to ensure that comparable safety
requirements apply to digger derricks during pole work, OSHA is
including language in final Sec. 1926.1400(c)(4) stating that Sec.
1910.268 applies when digger derricks are used in construction work for
telecommunication service. Section 1910.268 includes requirements for
working near energized power lines and requirements pertaining to the
operation of the equipment, such as the need to comply with
manufacturer load ratings.
In addition, Sec. 1926.952(c)(2) is also being amended to conform
subpart V to Sec. 1926.1400(c)(4).
While OSHA agrees that the limited exclusion recommended by C-DAC
should be broadened in this manner, the Agency does not agree that the
exclusion should encompass all uses of digger derricks in electric
utility construction work, as some commenters suggested. Digger
derricks are specifically designed to be used to install and remove
utility poles. However, their lifting ability is not limited to utility
poles, and the record shows that they are used by electric utilities
for general lifting work, such as setting transformers in substations.
Their use with utility poles falls within the ``narrow, specialized
range of activities and circumstances'' that led C-DAC to develop the
proposed exclusion (see 73 FR 59729, Oct. 9, 2008). But when digger
derricks are used for general lifting purposes, the hazards are the
same as when other equipment of similar capacity is used for general
lifting, and the exclusion developed by C-DAC is not appropriate for
such work. OSHA determines that an exclusion limited to augering holes,
setting and removing poles from those holes, and handling associated
material to be installed on or removed from the poles will provide
employees with an appropriate level of protection while accommodating
the unique uses for which digger derricks are designed. It will also
minimize the practical problems associated with equipment moving in and
out of coverage at the same worksite.
OSHA recognizes that excluding digger derricks only when they are
used for pole work would mean that the same machinery might be excluded
for some work but covered when it is used at different worksites.
However, the general lifting work done at those other worksites would
be subject to this standard if done by other types of lifting
equipment, and the same standards should apply as apply to that
equipment. OSHA concludes that excluding digger derricks only for the
work for which they are primarily designed and used is a reasonable
approach. It accommodates the considerations that led C-DAC to propose
a partial exclusion while treating digger derricks used for other
construction work the same as other, similar equipment used for such
work.
OSHA also declines to extend the exclusion broadly to installation
of all poles for outdoor lighting along roadways, as one commenter
suggested. OSHA notes that some poles that carry electric and
telecommunication lines also have street lights installed on them, and
use of digger derricks to install such lights would qualify for the
exclusion to the extent that the employer complies with either
Sec. Sec. 1910.268 or 1910.269. It is unclear whether, and to what
extent, digger derricks are used to install other types of poles used
for lighting alone which do not carry electric power lines or
telecommunication lines. Many such poles are installed on aboveground
concrete bases rather than set in holes in the ground, and it is
unclear whether and to what extent digger derricks are used to install
them. In this regard, OSHA notes that the commenter asking
[[Page 47926]]
for the exclusion to be extended to light poles represents equipment
manufacturers, and no company that installs lighting poles suggested
such an exclusion. To the extent that some light pole installation
would not be covered by either Sec. Sec. 1910.268 or 1910.269,
extending the exclusion to such work would leave the excluded work
without coverage by an appropriate general industry standard and leave
workers without the protection they receive when performing electric
utility or telecommunication work.
OSHA disagrees with the comment that digger derricks should not be
excluded at all because of the danger of power line contact. As
discussed above, the digger derrick exclusion is limited to situations
in which certain general industry standards apply, and those general
industry standards, both Sec. Sec. 1910.268 and 1910.269, contain
requirements for protecting against power line contact.
Proposed paragraph (c)(5) specifically excludes machinery
originally designed as vehicle mounted aerial lifts and self-propelled
elevating work platforms. The language of this provision reflects C-
DAC's intent to differentiate between equipment with an attachment such
as a personnel platform pinned to the boom, which is within the scope
of the proposed rule, and machinery originally designed to be
configured only as an aerial lift, which is excluded. Another standard,
Sec. 1926.453, addresses aerial lifts. The only comments to address
this exclusion supported retaining it. (ID-0129.1; -0312.1.)
Accordingly, paragraph (c)(5) is promulgated as proposed.
Proposed paragraph (c)(6) excluded telescopic/hydraulic gantry
systems. C-DAC excluded this machinery because it presents hazards that
differ in many respects from those presented by the equipment covered
by this standard. As a result, many provisions of this standard would
not be workable or needed for this equipment, and hazards unique to
this type of machinery would not be addressed. In the proposed rule,
OSHA noted that the Specialized Carriers & Rigging Foundation recently
issued a voluntary consensus standard for telescopic/hydraulic gantry
systems. (73 FR 59730, Oct. 9, 2008; ID-0027.) As no comments on this
exclusion were received, paragraph (c)(6) is promulgated as proposed.
Under proposed paragraph (c)(7), stacker cranes were excluded. C-
DAC noted that these cranes are rarely used in construction, and their
configuration is too unlike other equipment covered by the proposed
standard to warrant inclusion. No comments on this exclusion were
received, and paragraph (c)(7) is promulgated as proposed.
Paragraph (c)(8) of the proposed rule excluded ``powered industrial
trucks (forklifts).'' C-DAC proposed to exclude such machines because
forklifts are mostly used in a manner that does not involve suspended
loads and would often require different responses to the hazards
presented than are provided in this standard.
OSHA solicited public comment on whether the scope language should
be modified to explicitly state that forklifts modified to perform
tasks similar to cranes are covered. Two commenters stated that the
inclusion in paragraph (a) of this section of multi-purpose machines
when configured to hoist and lower by means of a winch or hook would
include forklifts that are modified to perform tasks similar to a
crane. (ID-0205.1; -0213.1.) Several other commenters argued that
forklifts should be excluded even if they are configured to perform
tasks similar to cranes and suggested adding specific language to that
effect. (ID-0187.1; -0231.1; -0232.1) These commenters noted that
forklifts are regulated under a different section, Sec. 1926.602(c),
and believed that Sec. 1926.602(c) was better suited to the hazards
presented by such equipment than this standard. One commenter stated
that the challenges facing modified forklift operators are
fundamentally different from the challenges facing crane operators,
thus the standards regulating them should also be fundamentally
different. (ID-0231.1.)
The comments submitted on this issue highlight the need for greater
clarity. This standard applies to equipment that can hoist, lower and
horizontally move a suspended load. First, as a preliminary matter, the
standard does not apply to forklifts used exclusively in their most
traditional form: placing the forks underneath a load and using the
forks to lift or lower the load. With a ``suspended'' load, the forks
(or modified lifting device) would be above the load.
Second, OSHA has included paragraph (c)(8) to exclude forklifts
when used to suspend a load from its forks. OSHA recognized that a
forklift could technically meet the criteria of subpart CC coverage
whenever it is used to suspend a load from its forks (such as by
hanging the load from a chain wrapped around the forks), hoist it
vertically by raising or lowering the forks, and move the load
horizontally by moving the entire forklift. Under such a scenario the
forks are used as the primary support for a load suspended directly
from the forks, but OSHA concludes that these forklifts warrant an
exception from the scope of this subpart CC because they do not utilize
the components in the same manner as other equipment covered by this
standard. In contrast, a piece of equipment covered by this standard
manipulates suspended loads by utilizing components such as winches,
booms, jibs, gantries, and trolleys. Outriggers and stabilizers are
also often needed to stabilize the equipment while hoisting a load.
Third, OSHA is revising paragraph (c)(8) to clarify that the
forklift exclusion applies only to forklifts that do not meet the
definition of multi-purpose machines covered under subpart CC (those
that are configured to hoist and lower (by means of a winch or hook)
and horizontally move a suspended load). This standard covers multi-
purpose machines because they are configured with the above-mentioned
components (winches, booms, jibs, gantries, trolleys, stabilizers,
etc.), even though they also have a dual function. OSHA recognizes that
a powered industrial truck could be modified so that it would qualify
as a multi-purpose machine, such as by adding an after-market boom and
hook attachment in addition to the fork attachment. It is the Agency's
intent that forklifts that are capable of multiple configurations are
treated as multi-purpose machines and excluded from coverage of subpart
CC only as set forth in Sec. 1926.1400(a). A forklift with a boom
attachment affixed to its forks that uses a hook to raise and lower the
load like a crane would be covered by subpart CC. However, as noted in
the preamble to the proposed rule, a forklift would be excluded from
the coverage of subpart CC when its sole means of suspending a load is
a chain wrapped around the forks.
Proposed paragraph (c)(9) excluded mechanics' trucks with hoisting
devices when used in activities related to equipment maintenance and
repair. One commenter stated that similar trucks are used in the power
line industry for tasks such as installing transformers and suggested
that such equipment should also be excluded. (ID-0144.1.) However, as
explained in the proposed rule, this provision was not intended to
exclude mechanics' trucks when used to hoist materials during
construction work but only to provide a limited exception when they are
used for equipment maintenance and repair activities. Their use in this
manner is similar to the way automotive wreckers and tow trucks, which
are excluded under paragraph (c)(3) of this section, are used. OSHA
determines that this exclusion should be
[[Page 47927]]
limited in the manner stated in the proposed rule, and paragraph (c)(9)
is promulgated as proposed.
In proposed paragraph (c)(10), machinery that hoists by using a
come-a-long or chainfall was excluded for the reasons explained in the
preamble to the proposed rule (see 73 FR 59730, Oct. 9, 2008). No
comments were received on this provision, and it is promulgated as
proposed.
Proposed paragraph (c)(11) excluded dedicated drilling rigs. This
exclusion received substantial attention during the C-DAC negotiations
and was discussed at length in the proposed rule (see 73 FR 59730, Oct.
9, 2008). OSHA requested public comment on issues related to this
exclusion. No written comments were submitted but, in testimony at the
public hearing, a trade association supported the proposed exclusion.
(ID-0341.) Accordingly, paragraph (c)(11) is promulgated as proposed.
Proposed paragraph (c)(12) excluded ``gin poles when used for the
erection of communication towers.'' (See discussion at 73 FR 59730,
Oct. 9, 2008). A commenter stated that this exclusion should be
extended to also cover gin poles used to erect electrical transmission
towers and lines, but gave no supporting rationale or information. (ID-
0209.1.)
The use of gin poles for erecting communications towers is highly
specialized; the communication tower industry has developed a detailed
consensus standard that specifically addresses their use in that
application.\5\ However, the Agency is unaware of a similar degree of
specialization and development of safe practices for gin poles used for
erecting electrical transmission towers. Accordingly, OSHA lacks a
basis for extending the exclusion to work other than that covered in
proposed paragraph (c)(12); paragraph (c)(12) is promulgated as
proposed with the addition of the word ``when'' before ``used'' to
clarify that the exclusion does not apply when gin poles previously
used to erect communication towers are used for other purposes.
---------------------------------------------------------------------------
\5\ See ANSI/TIA-1019 (2004), Structural Standards for Steel Gin
Poles Used for Installation of Antenna Towers and Antenna Supporting
Structures, which contains detailed provisions for installing and
using gin poles to erect communication towers.
---------------------------------------------------------------------------
Proposed paragraph (c)(13) excluded tree trimming and tree removal
work from the scope of the proposed rule. One commenter favored the
exclusion as written (ID-0040.1), but another suggested limiting the
exclusion to tree trimming performed for maintenance and including tree
trimming related to construction (ID-0172.1). The latter commenter
stated that tree trimming related to construction is particularly
dangerous because the weight of the pick is uncertain and the ground
conditions to support the equipment may be inadequate.
C-DAC agreed to exclude tree trimming and removal because the vast
majority of the tree care industry's work does not take place in
construction and is therefore governed by general industry standards.
OSHA continues to agree that this is a valid reason for the exclusion.
OSHA is promulgating paragraph (c)(13) as proposed.
Proposed paragraph (c)(14) excluded anchor handling with a vessel
or barge using an affixed A-frame. Two commenters suggested that the
vessels to which this paragraph pertains should be excluded even when
used for purposes other than anchor handling to avoid having the
vessels move in and out of coverage depending on how they are used.
(ID-0376.1; -0383.1.) These commenters stated that such vessels are
sometimes used for dredging operations and suggested rewording the
exclusion to state: ``Anchor handling or dredge related operations with
a vessel or barge using an affixed A-frame.''
OSHA is adopting these commenters' suggestion and their recommended
wording of paragraph (c)(14). As explained in the proposed rule, C-DAC
agreed to the exclusion in proposed paragraph (c)(14) because its
Cranes on Barges Work Group concluded that the requirements of this
rule could not readily be applied to the specialized equipment listed
in the exclusion. That rationale favors the broader exclusion
recommended by the commenters.
Proposed paragraph (c)(15) excluded roustabouts because C-DAC
concluded that the proposed standard was similarly unsuited to address
these devices (see 73 FR 59731, Oct. 9, 2008). No commenters addressed
this issue, and paragraph (c)(15) is promulgated as proposed.
Paragraph (c)(16) excludes helicopter cranes. Such cranes are
regulated under Sec. 1926.551 of subpart N, which is not affected by
this final rule and continues in effect. C-DAC and OSHA did not intend
to cover helicopter cranes under this subpart. However, such cranes fit
the description in Sec. 1926.1400(a) of the equipment covered by this
rule in that they are power-operated equipment that can hoist, lower,
and horizontally move a suspended load. To avoid any uncertainty over
whether they are subject to this rule or to Sec. 1926.551, OSHA is
explicitly excluding them from this rule through paragraph (c)(16).
Paragraph (c)(17) Delivery of Material to Construction Sites
It is common for material that is to be used in construction work
to be delivered to the construction site on a truck equipped with a
lifting attachment that is used either to place the materials on the
ground or to place them on the structure. For example, articulating/
knuckle-boom truck cranes are often used to deliver bundles of drywall
to the site and then move the bundles from the truck up to a floor of
the building under construction. To the extent these cranes are used in
``construction work,'' they fall within the scope of this final rule as
defined in Sec. 1926.1400(a).
OSHA has long taken the view that an employer who delivers
materials to a construction site is not engaged in ``construction
work'' if that employer's work once at the site is limited to simply
placing/stacking the materials on the ground. OSHA requested comment
from the public on whether the final rule should include an explicit
exclusion to this effect (see 73 FR 59731, Oct. 9, 2008).
Most commenters on this issue favored such an exclusion to clarify
that such equipment was not being used in construction. (ID-0145.1; -
0147.1; -0165.1; -0184.1; -0206.1; -0218.1; -0232.1; -0233.1; -0235.1;
-0299.1.) Certain commenters expressed the view that any such exclusion
should also extend to delivery of materials onto structures at the
construction site because, in their view, this was also not a
construction activity. (E.g., ID -0184.1; -0233.1; -0235.1.) Some of
these commenters represented employers who deliver building materials
such as lumber, drywall, and roofing materials. (See, e.g., ID-0184.1;
-0233.1.) Others represented employers in the heating, ventilation, air
conditioning, and refrigeration (HVACR) industry. (ID-0165.1; -0235.1.)
Several of the commenters pointed to the operator training and/or
certification requirements in Sec. 1926.1427 of the proposed rule as
particularly burdensome given the distinctions between delivery
activities and what they characterized as the more complex activities
typically associated with the equipment covered by the proposed rule.
(ID-0165.1; -0184.1; -0218.1; -0231.1; -0233.1; -0235.1.)
OSHA notes some commenter confusion regarding instances when the
construction materials are not delivered to the curb or a stockyard but
instead to a designated area on the construction site where the
materials are staged/organized to facilitate hoisting activities. In
these scenarios, OSHA construction
[[Page 47928]]
standards apply. See, e.g., Letter to Johnson (2/6/08) (stacking of
materials), Letter to Reynolds (1/5/01) (delivery of materials onto
structure). When hoisting equipment is used to arrange the materials in
a particular sequence for hoisting or to lift materials onto a
structure that is under construction, it is being used to expedite work
that is integral to the construction process and is, therefore,
construction work. However, to remain consistent with existing
compliance guidance, this final rule states that when lifting equipment
is used solely to deliver building supply materials from a supplier to
a construction site by placing/stacking the materials on the ground,
without arranging the materials in a particular sequence for hoisting,
OSHA does not regard the delivery process as a construction activity.
OSHA believes that this limited and conditional exclusion will exclude
this equipment when used to perform such deliveries and address the
concerns of commenters who only deliver construction materials to the
ground.
Construction typically consists of a process of assembling and
attaching (or in some cases, disassembling) a vast variety of materials
to form a building or other structure.\6\ In building construction,
those materials typically include small, individual items (a few
examples include: nails, lumber, pipes, duct work sections, electrical
items, sheet goods), large individual items (a few examples include:
structural steel or precast concrete columns and beams), and
prefabricated structural and building system components (a few examples
include: roof trusses, precast concrete wall sections, and building
machinery such as boilers, pumps, and air handling equipment). All of
these items must be delivered to the jobsite and unloaded from the
vehicle delivering them before they can be used in the building or
structure.
---------------------------------------------------------------------------
\6\ Construction also includes the deconstruction or demolition
of a portion, or all, of a structure.
---------------------------------------------------------------------------
C-DAC indicated that to facilitate the assembling or attaching of
such items, cranes and derricks are often used to hoist and hold,
support, stabilize, maneuver, or place them. Sometimes they are used to
place items in a convenient location for subsequent use. For example,
they are often used to place a bundle of steel decking sheets onto the
structure for later ``shaking out'' (i.e., after being landed on the
structure, workers ``break'' the bundle and distribute the decking
sheets for subsequent attachment). One of OSHA's construction standards
contains specific requirements related to the landing and placing of
such bundles (see Sec. 1926.754(e)(1)).
Sometimes cranes and derricks are used to place an item in a
specific location for immediate attachment. For example, cranes are
typically used to precisely place steel columns on concrete footings,
which involves aligning holes at the column's base with anchor rods/
bolts in the footing so that the column can be secured to the footing.
In building and bridge construction, cranes are often used to precisely
place precast concrete members so that workers can attach them to other
precast members (or sometimes to a structural steel frame).
Cranes are also used to place precast concrete components so that
other items can be connected to them. For example, in utility and sewer
construction, precast concrete manholes or vaults are placed for proper
alignment with utility pipes; in residential construction, precast
concrete septic systems are placed for proper location in an
excavation. Clearly, such movement and placement of material by cranes
and derricks is integral to the construction process, and the fact that
this may be done by the vehicle that delivered the material to the site
does not make it a non-construction activity.
Cranes are also commonly used to hoist building materials onto a
structure for subsequent use. Although this is also a construction
activity,\7\ OSHA determines that a limited exclusion for articulating/
knuckle-boom truck cranes used for such work is appropriate to minimize
having this equipment move in and out of coverage of this rule.
---------------------------------------------------------------------------
\7\ Moving building materials onto a structure for subsequent
use is an integral part of the construction process. This is the
case whether the materials are brought onto the structure by hand,
with the aid of a crane after the materials had been previously
delivered to the ground, or by the same equipment that brought them
to the site. See e.g., January 5, 2001, Letter of Interpretation to
Mr. Jeff Reynolds, Division Safety Manager Pacific Supply, available
at http://www.osha.gov.
---------------------------------------------------------------------------
The record shows that articulating/knuckle-boom truck cranes are
often used to deliver sheet goods (e.g., drywall), or packaged
materials (e.g., roofing shingles) to construction sites and that it is
common for the delivery to be made onto the structure. Delivering
material to a structure can pose a hazard that is typically not present
when material is placed on the ground: when the boom is extended, as
when lifting the material to an upper floor, the possibility of
exceeding the crane's rated capacity, with the resultant possibility of
boom collapse and crane tipover, is present. A representative of a
material delivery trade association testified that articulating/
knuckle-boom cranes are equipped with automatic safety systems that
detect whether the crane is close to being overloaded and automatically
prevent such overloading. (ID-0341; -0380.1; -0381.1.)
The representative described a test on a crane with a load of 2,900
pounds and a maximum extension of 78 feet, 11 inches, and said that the
automatic device preventing the boom from extending beyond its maximum
safe length for that load and angle of 46 feet. (ID-0341.) Thus, with a
load that is typical of the loads that are often delivered, the hazard
of the crane collapsing exists with the boom at far less than its
maximum possible extension. Another representative of the material
delivery industry, also noted the presence of such devices on the
equipment used by its members and, while it asked for such equipment to
be exempt completely from this rule, alternatively suggested an
exemption for equipment with such devices installed. (ID-0184.1.)
OSHA is, to a large extent, adopting the commenter's suggestion.
The overloading and subsequent collapse of cranes is one of the primary
hazards this final rule seeks to address. The trade association
witness's testimony shows that the potential for collapse is present
when articulating/knuckle-boom cranes are used to deliver materials
onto a structure. The industry has, however, addressed this hazard by
equipping such cranes with automatic overload prevention devices.
Therefore, OSHA is excluding articulating/knuckle-boom cranes used to
deliver materials onto a structure from the final rule, but only when
the cranes are equipped with properly functioning automatic overload
prevention devices. Without such a device, the crane is subject to all
provisions of this final rule. It should be noted that electrical
contact with power lines is another serious hazard covered by the final
rule. The limited exemption for articulating/knuckle-boom cranes used
for certain construction operations also exempts this equipment from
the requirements for operations near power lines contained in the final
rule. When performing an exempt operation, this equipment (like must of
the other exempt equipment and operations) will be covered by revised
Sec. 1926.600(a)(6).
OSHA is limiting this exclusion to the delivery of sheet goods and
packaged materials including, but not limited to: sheets of sheet rock,
sheets of plywood, bags of cement, sheets or packages of roofing
shingles, and rolls of roofing felt. The placement of other materials
on a structure under construction is the type of core construction
activity this rule seeks to address, and excluding the
[[Page 47929]]
hoisting and movement of other types of materials, such as precast
concrete members, prefabricated building sections, or structural steel
members, would severely reduce the rule's effectiveness. Moreover,
equipment used to lift these types of materials on construction sites
is rarely, if ever, used for non-construction activities on those sites
and does not often present the problem of equipment moving in and out
of coverage when used for different activities.
OSHA is also limiting the exclusion by making it clear that it does
not apply when the crane is used to hold, support or stabilize the
material to facilitate a construction activity, such as holding
material in place while it is attached to the structure. For example,
while placing a package of shingles onto the roof of a structure would
fall within the exemption, suspending the shingles in the air and
moving them to follow the progress of the roofer would not. When the
crane is being used to facilitate the construction activity, it has
exceeded the ``delivery'' of goods and is therefore engaged in a
process that is more complex than the scenarios addressed by the
commenters who supported an exclusion for materials delivery. OSHA is
also concerned that exempting this activity would provide an incentive
for employers to use materials delivery cranes for other purposes,
thereby undermining the rationale for the materials delivery exclusion.
In particular, OSHA declines to exclude the handling of HVACR
units, as some commenters urged. Using a crane to deliver HVACR
equipment is an example of using a crane to hoist and position a
component of the building's mechanical systems, which is an integral
part of the construction process. According to one industry commenter,
during a typical installation of a large commercial rooftop HVACR unit,
a mobile crane delivers the equipment to its intended location on the
roof, where an HVACR technician connects the equipment to the
ventilation system. (ID-0165.1) Thus, unlike sheet goods and packaged
materials, which are not placed in their location of final use by the
delivery vehicle, delivery of HVACR equipment may be integral to its
installation. Like the hoisting and movement of other building
components, use of cranes and derricks to move HVACR equipment falls
squarely within this rule.
OSHA also received a comment from a representative of the precast
concrete industry requesting the exclusion of equipment used to deliver
materials such as concrete manholes, septic tanks, burial vaults,
concrete block, and concrete pipe. (ID-0299.1) This commenter stated
that their portion of the precast concrete industry solely delivers
materials to a construction site, and believed that they simply supply
materials for a construction project but are not involved in actual
construction. (ID-0299.1)
OSHA agrees that in circumstances where the equipment is used
solely to deliver these types of concrete materials from a supplier to
a construction site by placing/stacking the materials from the delivery
vehicle to the ground in, for example, a storage or staging area,
without arranging the materials in a particular sequence for subsequent
hoisting, the equipment is not being used for a construction activity.
However, if the equipment is used to hoist, hold, support, stabilize or
place precast concrete material as part of the installation process, it
is engaged in a construction activity and would be subject to this
rule. For example, a truck-mounted articulating crane may be used to
maneuver a precast component such as a vault or concrete pipe from the
truck to its installation point in an excavation. As previously
discussed, such use is a typical construction activity.
To summarize, when a delivery vehicle is used solely to deliver
building supply materials from a supplier to a construction site by
placing/stacking the materials on the ground, without arranging the
materials in a particular sequence for hoisting, the equipment is not
being used for a construction activity and is not subject to this rule.
When an articulating/knuckle-boom truck crane that brings material to a
site is used to transfer building supply sheet goods or building supply
packaged materials from the vehicle onto a structure, the activity is a
construction activity but the crane is excluded from this rule if it is
equipped with a properly functioning automatic overload prevention
device and satisfies the other requirements of the exception in Sec.
1926.1400(c)(17). All other equipment that falls under Sec.
1926.1400(a) is subject to this rule when delivering materials onto a
structure.
OSHA is including in the final rule a new Sec. 1926.1400(c)(17) to
clarify the circumstances under which material delivery is subject to
the rule. Paragraph (c)(17)(i) excludes from the scope of this standard
an articulating/knuckle-boom truck crane that delivers material to a
construction site when it is used to transfer materials from it to the
ground, without arranging the materials in a particular sequence for
hoisting.
Paragraph (c)(17)(ii) contains the exclusion for an articulating/
knuckle-boom truck crane that delivers material to a site when it is
used to transfer building supply sheet goods or building supply
packaged materials from it onto a structure, using a fork/cradle at the
end of the boom. This provision conditions this exclusion on the truck
crane being equipped with a properly functioning automatic overload
prevention device and lists examples of the sheet goods or packaged
materials that qualify for the exclusion, stating that these include,
but are not limited to: sheets of sheet rock, sheets of plywood, bags
of cement, sheets or packages of roofing shingles, and rolls of roofing
felt. These are typical building supply materials that pose a reduced
risk of falling when being lifted by the truck crane because of their
configuration and/or packaging, and because the truck crane was
designed to safely handle this type of material.
Any delivery activities not excluded under paragraphs (c)(17)(i)
and (ii) are subject to the standard. However, to avoid any possible
ambiguity on this point, OSHA has included paragraph (c)(17)(iii).
Paragraphs (c)(17)(iii)(A)-(C) list explicit activities for which the
exclusion does not apply. Paragraph (c)(17)(iii)(D) is included to
avoid any possible implication that paragraphs (c)(17)(iii)(A)-(C)
represent an exclusive list of delivery activities that are subject to
the final rule.
Paragraph (d)
Paragraph (d) of this section is included because there are some
types of equipment for which only limited requirements apply, and
others where there are special requirements that supplement, rather
than displace, the other requirements in the rule. To avoid confusion,
this paragraph establishes that all parts of the rule apply unless a
provision specifically identifies other parts of the rule as
inapplicable, or identifies the only provisions of the standard that
are applicable. No comments were received on this paragraph, and it is
promulgated as proposed except that ``subpart CC'' replaces the phrase
``this standard'' from the proposed rule.
Paragraph (e)
Proposed paragraph (e) of this section provided that the duties of
controlling entities \8\ are not limited to the duties specified in
Sec. Sec. 1926.1402(c), 1926.1402(e) and 1926.1424(b). The paragraphs
referenced in this provision listed specific duties imposed on
controlling entities under this rule.
[[Page 47930]]
Paragraph (e) was included to avoid any implication that the listing of
certain duties placed on controlling entities by this rule displaces
the duties placed on them under OSHA's multi-employer policy.
---------------------------------------------------------------------------
\8\ The definition of ``controlling entity'' is explained in the
discussion of Sec. 1926.1402(c).
---------------------------------------------------------------------------
Several commenters questioned OSHA's authority to enforce its
multi-employer policy against controlling entities as well as the
provisions in the proposed rule that would impose specific duties on
controlling entities. (ID-0166.1; -0197.1; -0214.1; -0232.1.) OSHA
explained in detail in the proposed rule why it has such authority (see
73 FR 59731-59733, Oct. 9, 2008). Paragraph (e) is promulgated as
proposed.
Paragraph (f)
Paragraph (f) requires that where a provision in the rule directs
an operator, crewmember or other employee to take a specified action,
it is the employer's responsibility to establish work rules to require
the relevant employees to take that action, and to effectively
communicate and enforce those work rules. This paragraph clarifies the
employer's obligations with regard to such provisions. No comments on
this paragraph were received, and it is being promulgated as proposed
with only a minor grammatical correction.\9\
---------------------------------------------------------------------------
\9\ For clarity, OSHA is substituting references to ``shall'' in
the proposed rule with ``must'' in this final rule to remove any
implication that the sentence is descriptive, rather than
imperative.
---------------------------------------------------------------------------
Paragraph (g)
Some commenters requested that OSHA provide a complete exemption
from subpart CC for subpart V work. As discussed in Sec. 1926.1410(k),
OSHA has addressed their concerns through exclusions from specific
requirements of the rule.
Most employers engaged in construction work under subpart V are
also engaged in general industry work under Sec. 1910.269, which
covers the operation and maintenance of electric power generation,
transmission, and distribution installations. The requirements for
mechanical equipment in Sec. 1910.269(p) are at least as protective as
the requirements in Sec. Sec. 1926.1407-1926.1411 of subpart CC.
Therefore, OSHA determines it is appropriate to give employers doing
subpart V work the option of complying with Sec. 1910.269(p) in lieu
of the requirements in Sec. Sec. 1926.1407-1926.1411 of this final
rule. This decision has been codified in paragraph (g) of this section
and a note referencing this new paragraph has been added to Sec.
1926.952(c)(3).
Paragraph (h)
Paragraph (h) notes that Sec. 1926.1402, Ground conditions, does
not apply to cranes used on railroad tracks that are part of a general
railroad system that is regulated by the Federal Railroad
Administration. OSHA added paragraph (h) to this section of the final
rule to aid the public in finding this exception. (See discussion of
this provision at Sec. 1926.1402(f).)
Section 1926.1401 Definitions
OSHA includes a number of definitions to clarify the meaning of
terms used in this subpart. Many of the defined terms are commonly used
in the industry, and C-DAC in most instances relied on standard
industry sources or its own understanding of how terms are used in the
industry to help ensure that the definitions would be readily
understood by employers and employees. Industry sources on which C-DAC
relied include existing OSHA standards, consensus standards, and ``A
Glossary of Common Crane and Rigging Terms'' (Specialized Carriers and
Rigging Foundation 1997) (``SC&RF Handbook'') (ID-0019.). OSHA includes
other definitions to ensure that certain terms used in the proposed
standard have a precise, unambiguous meaning.
One commenter noted that definitions as proposed were not identical
to those in certain consensus standards and requested they be changed
to match. (ID-0178.1.) The commenter cited to various consensus
standards, including ANSI A10.31-2006, ANSI A10.28-1998, ANSI A10.33-
1998, and ANSI Z359.0-2007. The commenter did not explain why the
definitions as proposed were inappropriate nor how the change would
improve safety. As noted above, consensus standards were utilized as a
resource in developing the definitions for this subpart. OSHA disagrees
with the commenter's position that the definition must match consensus
standards. OSHA established definitions that would work in the
framework of the equipment covered by this subpart, would coordinate
with other OSHA standards and provide a foundation for enforcing the
requirements of this subpart. As a result, OSHA is not making
modifications to definitions based on this commenter's request.
A few definitions in this final rule have been modified from or
added to those in the proposed rule. Those definitions are: A/D
director; Assembly/Disassembly; Builder; Controlling entity; Digger
derrick; Duty cycle; Freeboard; Hoist; Load moment (or rated capacity)
indicator; Load moment (or rated capacity) limiter; Nationally
recognized accrediting agency; Positioning device system; Range control
limit device; Repetitive lift; Tower crane; Type; Upperworks; and Wire
rope.
The reasons for these additions or modifications are discussed in
the preamble at the location indicated in Table 5 below, with the
exception of the definition for hoist, which is discussed below.
OSHA received one comment on the definition of ``hoist'' in the
proposed rule. (ID-0122.0.) This commenter expressed concern that the
proposed definition would exclude hoists that utilized wire rope or
chains. To address this concern, OSHA modified the definition of
``hoist'' in the final rule to refer to ``a line'' rather than
``rope.'' The use of the more general term ``line'' is intended to
refer to any material (e.g., rope, wire rope, chain, etc.) used to
connect the hoist to that which is being hoisted.
Definitions that did not receive comment are adopted for the
reasons set forth in the preamble of the proposed rule (see 73 FR
59733-59739, Oct. 9, 2008).
The preamble location for discussion of all definitions provided in
Sec. 1926.1401 can be found in Table 5 below.
Table 5--Index of Defined Terms
--------------------------------------------------------------------------------------------------------------------------------------------------------
Term Location of preamble discussion Term Location of preamble discussion
--------------------------------------------------------------------------------------------------------------------------------------------------------
A/D director......................... Sec. 1926.1404(a)....................... Load...................... Sec. 1926.1401
Articulating crane................... Sec. 1926.1401.......................... Load moment (or rated Sec. 1926.1416(e)(4)
capacity) indicator.
Assembly/Disassembly................. Sec. 1926.1403.......................... Load moment (or rated Sec. 1926.1416(e)(4)
capacity) limiter.
Assist crane......................... Sec. 1926.1404(h)(4).................... Locomotive crane.......... Sec. 1926.1401
[[Page 47931]]
Attachments.......................... Sec. 1926.1400(b)(2).................... Luffing jib limiting Sec. 1926.1416(d)(2)
device.
Audible signal....................... Sec. 1926.1419(b)....................... Marine hoisted personnel Sec. 1926.1431(b)(2)(iii)
transfer device.
Blocking............................. Sec. 1926.1404(h)(2).................... Marine worksite........... Sec. 1926.1431(b)(2)(iii)
Boatswain's chair.................... Sec. 1926.1431(o)....................... Mobile cranes............. Sec. 1926.1401
Bogie................................ Sec. 1926.1435.......................... Moving point-to-point..... Sec. 1926.1423(e)(1)
Boom (equipment other than tower Sec. 1926.1401.......................... Multi-purpose machine..... Sec. 1926.1400(a)
crane).
Boom (tower cranes).................. Sec. 1926.1435(e)(5)(ii)................ Nationally recognized Sec. 1926.1427(b)(1)(i)
accrediting agency.
Boom angle indicator................. Sec. 1926.1416(d)(1)(i)(A).............. Non-conductive............ Sec. 1926.1407(b)(2)
Boom hoist limiting device........... Sec. 1926.1416(d)(1).................... Operational aids.......... Sec. 1926.1416
Boom length indicator................ Sec. 1926.1416(e)(3).................... Operational controls...... Sec. 1926.1417(b)(2)
Boom stop............................ Sec. 1926.1416(a)(2).................... Operator.................. Sec. 1926.1401
Boom suspension systems.............. Sec. 1926.1404(h)(7).................... Overhead and gantry cranes Sec. 1926.1438
Builder.............................. Sec. 1926.1436(c)....................... Paragraph................. Sec. 1926.1401
Center of gravity.................... Sec. 1926.1404(h)(6).................... Pendants.................. Sec. 1926.1404(h)(8)
Certified welder..................... Sec. 1926.1431(e)(5).................... Personal fall arrest Sec. 1926.1423(g)
system.
Climbing............................. Sec. 1926.1435(b)(7).................... Portal cranes............. Sec. 1926.1415(a)(1)
Come-a-long.......................... Sec. 1926.1400(c)(10)................... Positioning device system. Sec. 1926.1423
Competent person..................... Sec. 1926.1401.......................... Power lines............... Sec. 1926.1407-1411
Controlled load lowering............. Sec. 1926.1426(d)....................... Procedures................ Sec. 1926.1401
Controlling entity................... Sec. 1926.1402(c)....................... Proximity alarm........... Sec. 1926.1407(b)(3)
Counterweight........................ Sec. 1926.1404(h)(9).................... Qualified evaluator (not a Sec. 1926.1428(a)(2)
third party).
Crane/derrick........................ Sec. 1926.1400.......................... Qualified evaluator (third Sec. 1926.1428(a)(2)
party).
Crawler crane........................ Sec. 1926.1401.......................... Qualified person.......... Sec. 1926.1401
Crossover points..................... Sec. 1926.1413(a)(3)(iii)............... Qualified rigger.......... Sec. 1926.1425(c)(3)
Dedicated channel.................... Sec. 1926.1420(b)....................... Range control limit device Sec. 1926.1408(a)
Dedicated pile-driver................ Sec. 1926.1439(a)....................... Range control warning Sec. 1926.1407(a)(3)
device.
Dedicated spotter (power lines)...... Sec. 1926.1407(b)....................... Rated capacity............ Sec. 1926.1401
Digger derrick....................... Sec. 1926.1400(c)(4).................... Rated capacity indicator.. Sec. 1926.1416(e)(4)
Directly under the load.............. Sec. 1926.1425(e)(1).................... Rated capacity limiter.... Sec. 1926.1416(e)(4)
Dismantling.......................... Sec. 1926.1405.......................... Repetitive lift........... Sec. 1926.1414(e)(2)
Drum rotation indicator.............. Sec. 1926.1416(e)(5)(ii)................ Repetitive pickup points.. Sec. 1926.1413(a)(3)(iii)
Duty cycle........................... Sec. 1926.1414(e)(2).................... Running wire rope......... Sec. 1926.1413(a)(2)(ii)(A)
Electrical contact................... Sec. 1926.1407-1411..................... Runway.................... Sec. 1926.1431(k)(12)(ii)(A)
Employer-made equipment.............. Sec. 1926.1437(m)(4).................... Section................... Sec. 1926.1401
Encroachment......................... Sec. 1926.1407-1411..................... Side-boom crane........... Sec. 1926.1440
Equipment............................ Sec. 1926.1400.......................... Special hazard warnings... Sec. 1926.1417(c)(1)
Equipment criteria................... Sec. 1926.1412(b)(1)(i)................. Stability (flotation Sec. 1926.1437(m)
device).
Fall protection equipment............ Sec. 1926.1423(e)....................... Standard Method........... Sec. 1926.1419(c)
Fall restraint system................ Sec. 1926.1423(d)-(e), (g).............. Such as................... Sec. 1926.1401
Fall zone............................ Sec. 1926.1425(b)....................... Superstructure............ Sec. 1926.1424(a)(1)
Flange points........................ Sec. 1926.1413(a)(3)(iii)............... Tag line.................. Sec. 1926.1407(b)(2)
Floating cranes/derricks............. Sec. 1926.1437.......................... Tender.................... Sec. 1926.1437(j)(3)
For example.......................... Sec. 1926.1401.......................... Tilt-up or tilt down Sec. 1926.1425(e)
operation.
Free fall (of the load line)......... Sec. 1926.1426(d)....................... Tower crane............... Sec. 1926.1401
Free surface effect.................. Sec. 1926.1437(m)(5)(ii)................ Travel bogie (tower Sec. 1926.1435(d)(2)(iv)
cranes).
Freeboard............................ Sec. 1926.1437(m)(2).................... Trim...................... Sec. 1926.1437(e)(1)
Hoist................................ Sec. 1926.1401.......................... Two blocking.............. Sec. 1926.1416(d)(3)
Hoisting............................. Sec. 1926.1401.......................... Type...................... Sec. 1926.1427(b)(1)(ii)(B)
Include/including.................... Sec. 1926.1401.......................... Unavailable procedures.... Sec. 1926.1417(b)
Insulating link/device............... Sec. 1926.1408(b)(4)(v)................. Up to..................... Sec. 1926.1401
Jib stop............................. Sec. 1926.1415(a)(3).................... Upperstructure............ Sec. 1926.1424(a)(1)
Land crane/derrick................... Sec. 1926.1437.......................... Upperworks................ Sec. 1926.1424(a)(1)
List................................. Sec. 1926.1437(e)(1).................... Wire rope................. Sec. 1926.1413
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 1926.1402 Ground Conditions
The Committee determined that the failure to have adequate ground
conditions is a significant crane safety problem. Adequate ground
conditions are essential for safe equipment operations because the
equipment's capacity and stability depend on such conditions being
present. In the Committee's view, there are two key problems regarding
ground conditions: (1) Equipment is commonly brought on site by a
subcontractor, who typically has neither control over ground conditions
nor knowledge of hidden hazards, and (2) the entity that usually does
have such authority--the controlling entity--may not have the expertise
to know what changes are needed to make the ground conditions suitable
for equipment operations. This section is designed to address these
problems so that ground conditions will be made sufficient for safe
equipment operations.
One commenter asserted that, with respect to digger derricks, the
ground conditions provision should be changed. In particular, the
commenter stated that the Committee should incorporate by reference
secs. 7 through 10 of ANSI/ASSE A10.31-2006, Safety Requirements,
Definitions, and
[[Page 47932]]
Specifications for Digger Derricks; American National Standard for
Construction and Demolition Operations. (ID-0178.1.) In addition, the
commenter asserted that the ANSI/ASSE standard ``addresses worksite
selection that is clearer than what OSHA has proposed. For example, the
proposed rule does not recognize the danger that ditches can have on
placement, which is a common occurrence.''
OSHA first notes that these suggestions apply only to digger
derricks and thus interprets the comment as a recommendation that
digger derricks be treated differently than other equipment under Sec.
1926.1402. As we noted in the preamble to the proposed rule, the
Committee determined that the failure to have adequate ground
conditions is a significant safety problem. The Committee's
determination that this safety problem exists for various types of
equipment is underscored by the application of Sec. 1926.1402 to
nearly all equipment covered by this subpart. In addition, where the
Committee intended for certain equipment to be exempted from Sec.
1926.1402, it indicated that expressly (see, e.g., Sec. 1926.1440,
Sideboom Cranes). OSHA defers to the expertise of the Committee on this
issue.
Secondly, OSHA has reviewed ANSI/ASSE A10.31-2006 and found that it
is substantively distinguishable from Sec. 1926.1402. Specifically,
the two standards differ in the assignment of responsibilities. ANSI/
ASSE A10.31-2006 divides responsibilities among digger derrick dealers/
installers, owners, users, and operators. Notably, controlling entities
(who often do not fall into any of the ANSI/ASSE A10.31-2006
categories) are assigned no responsibility at all. Furthermore, the
discussion of worksite conditions is included only in sec. 10,
Responsibilities of Operators. ANSI/ASSE A10.31-2006 places the
responsibility of examining ground conditions entirely on the operator.
Also, ANSI/ASSE A10.31-2006 does not require that the ground condition
requirements be met before the equipment is installed; it requires only
that the worksite be surveyed before the digger derrick is used. In
sum, OSHA concludes that Sec. 1926.1402 is more effective than ANSI/
ASSE A10.31-2006 and declines to incorporate ANSI/ASSE A10.31-2006 by
reference.
The Agency disagrees with the commenter that Sec. 1926.1402 fails
to adequately address ditches. The hazard posed by a ditch is that the
ground is less firm in the area adjacent to it. Under Sec. 1926.1402,
the ground must be sufficiently firm to provide ``adequate support''
for the equipment. The section as proposed therefore addresses this
hazard.
Paragraph (a) Definitions
Paragraph (a) provides definitions of key terms used in this
section. The term ``ground conditions'' is defined as the ability of
the ground to support the equipment (including slope, compaction and
firmness). The Committee determined that slope, compaction and firmness
are the key factors that are involved in the ability of the ground to
support the equipment.
``Supporting materials'' is defined as meaning blocking, mats,
cribbing, marsh buggies (in marshes/wetlands), or similar supporting
materials or devices. Such materials typically help to distribute the
load of the crane over a broad area and/or assist in leveling the
equipment. The list in the definition of examples of such materials is
nonexclusive--it includes similar materials and devices that would
serve the same purpose(s).
The one comment that was received that referenced this provision is
addressed in the discussion below of Sec. 1926.1402(b). (See ID-
0178.1.)
Paragraph (b)
Under paragraph (b) of this section, the equipment is prohibited
from being assembled or used \10\ unless ground conditions are firm,
drained, and graded to a sufficient extent so that, in conjunction (if
necessary) with the use of supporting materials, the equipment
manufacturer's specifications for adequate support and degree of level
of the equipment are met. A crane's stability depends (in part) on the
crane being level, and ``degree of level'' is a term used in the
industry to describe the manufacturer's specification for how level the
crane must be. The Agency determined that the text of the proposed rule
did not make it clear that the drainage requirement did not apply to
marshes/wetlands. Accordingly, the final rule's text has been modified
to clearly state that this is the only exception. All other conditions
related to have a stable surface for the equipment is applicable.
---------------------------------------------------------------------------
\10\ Note that ``used'' is not limited to use of the equipment
at a fixed location; it also includes when the equipment is
traveling with a load.
---------------------------------------------------------------------------
In the Committee's experience, crane tip-over incidents caused by
inadequate ground conditions are a significant cause of injuries and
fatalities. For example, on September 28, 1999, a 19 year old
electrical instrument helper was killed by a crane that overturned
because insufficient care was taken to ensure that the ground under the
crane was firm and that the crane's outriggers were properly supported.
(ID-0017.13.) Conditions that enhance the chance of such accidents
include ground that is wet or muddy, poorly graded, or that is loose
fill (or otherwise disturbed soil) that has not been compacted. The
Committee determined that requiring adequate ground conditions will
prevent many of these accidents. The exception for marshes and wetlands
is included because the Committee was aware that, in many instances,
the draining of marshes/wetlands is prohibited or restricted by
environmental laws and there are devices available (such as marsh
buggies) that are designed to provide adequate support to cranes in
such areas.
One commenter suggested that the term ``level'' could be confusing
and suggested that it be defined as ``less than one degree of grade
change or as required by the manufacturer.'' (ID-0178.1.) OSHA finds
this comment unpersuasive. The suggested language is circular because
it does not use the term ``level'' by itself; it refers to ``the
equipment manufacturer's specifications for * * * degree of level of
the equipment.'' The reason the provision refers to the manufacturer's
specification in this regard is that it is the manufacturer that
establishes the load chart, and the load chart is valid only for the
parameters, including degree of level, established by the manufacturer.
At the public hearing, a representative of the railroad industry
raised an issue that OSHA determines could be the source of some
confusion. The commenter indicated that the railroad industry regularly
has to work in out-of-level conditions, since some sections of track
are not level. (ID-0342.) The commenter explained that the
manufacturers of track-mounted cranes provide specialized load charts
which take into account these out-of-level conditions.
The manufacturers of these cranes apparently specify that the
cranes can be used in certain out-of-level circumstances, as evidenced
by their provision of load charts for those conditions. Therefore, the
use of equipment in accordance with manufacturer specifications
regarding degree of level would meet Sec. 1926.1402(b)'s requirement
because the provision permits use of the equipment in accordance with
those specifications.
[[Page 47933]]
Paragraph (c)
Under Sec. 1926.1402(c), the controlling entity has several
specific duties regarding ground conditions. OSHA's authority to impose
these duties is discussed in detail in the preamble to the proposed
rule (see 73 FR 59731-59732, Oct. 9, 2008), and the Agency re-asserts
the same authority with respect to the final rule. As it did with
respect to the proposed rule, the Agency is again stating that the
duties imposed on the controlling entity through the promulgation of
this final rule are supplemental to, and do not displace, controlling
entity duties under OSHA's multi-employer policy. (See Sec.
1926.1402(e), discussed below; 73 FR 59731, Oct. 9, 2008).
``Controlling entity'' is defined in Sec. 1926.1401 as ``an
employer that is a prime contractor, general contractor, construction
manager or any other legal entity which has the overall responsibility
for the construction of the project--its planning, quality and
completion.'' This definition, which generally mirrors the definition
of ``controlling contractor'' in the steel erection standard, 29 CFR
part 1926, subpart R, reflects the core principle of general
supervisory control over the construction site. In this final rule,
OSHA is clarifying the definition to make it clear that the controlling
entity must be an employer.
Section 1926.1402(c)(1) requires the controlling entity to ensure
that ground preparations necessary to meet the requirements in
paragraph (b) of this section are provided. The Committee determined
that it is necessary to specify who will have ground condition
responsibility because in many instances the parties are unable to
agree on who will have (or has) that contractual responsibility, with
the result that often no one corrects inadequate ground conditions.
In the Committee's view, the crane user and operator typically do
not have the equipment or authority to make such preparations. In
contrast, the controlling entity, due to its control of the worksite,
has the requisite authority and is in the best position to arrange for
adequate ground conditions. The Committee was concerned, however, that
some controlling entities may lack the expertise to recognize when
ground conditions are inadequate. To address this concern, the
Committee developed Sec. 1926.1402(e).
One commenter said that adequate site assessment requires defining
ground bearing capacity compared to loading of the machine, along with
soil testing and proper analysis for ground conditions. (ID-0143.1.) As
explained in the preamble of the proposed rule, C-DAC considered, but
rejected, including specification requirements regarding the soil
conditions (see 73 FR 59739-59740, Oct. 9, 2008). This reflected the
view that most sites and circumstances do not require sophisticated
soil testing. In light of C-DAC's decision not to add new testing or
soil specifications, the many variables that may affect ground
conditions, and the existing body of law and OSHA guidance relating to
testing duties under the Agency's multi-employer policy, the Agency
concludes that it is appropriate to allow the controlling entity
flexibility in the manner in which it satisfies its duties under Sec.
1926.1402 and the multi-employer policy.
Under Sec. 1926.1402(c)(2), the controlling entity is required to
inform the user of the equipment and the equipment operator of the
location of hazards beneath the equipment set-up area (such as voids,
tanks, and utilities, including sewer, water supply, and drain pipes)
that are identified in documents (such as site drawings, as-built
drawings, and soil analyses) that are in the possession of the
controlling entity. These underground hazards can compromise the
ability of the ground above them to support the equipment. In the
experience of members of the Committee, because of the hidden nature of
these hazards, accidents have occurred when cranes have been set up
above such hazards and a portion of the ground has given way.
In developing this provision, the Committee was mindful that the
controlling entity often possesses documents obtained or developed
during the ordinary course of business that identify the location of
such hazards. Under the provision as proposed, if the controlling
entity has such a document, whether at the site or at an off-site
location, it is required to inform the equipment user and operator of
the location of the hazard as identified in it. If the controlling
entity does not possess the information, it is not required to obtain
it from another source. The Committee concluded that requiring the
controlling entity to obtain such information from other sources would,
in effect, require it to arrange for testing. As explained above, the
Committee determined such a duty would be unduly burdensome and
unnecessary.
Some commenters indicated that clarification is needed regarding
whether the controlling entity is required to possess particular
documents. (ID-0166.1; -0214.1.) OSHA agrees that additional
clarification is needed and is making two changes in the final text of
paragraph (c)(2) of this section. Both of these clarifications are
consistent with the rationale of the rule that the controlling entity
need only share information that it possesses, and that the controlling
entity has no obligation under Sec. 1926.1402 to seek out additional
information not in its possession.
First, OSHA is replacing the proposed phrase ``available to the
controlling entity'' with ``in the possession of the controlling
entity, whether at the site or off-site.'' As explained in the preamble
to the proposed rule,
[i]n developing this proposed provision, the Committee was mindful
that the controlling entity often has access to documents that may
identify the location of such hazards. * * * Under this proposed
provision, if the controlling entity has such a document, whether at
the site or at an off-site location, it would be required to inform
the equipment user and operator of the location of the hazard as
identified in it. If the controlling entity does not possess such a
document, it would not be required to obtain it from another source.
The phrase ``available to'' may be interpreted as including
documents that the controlling entity does not already have in its
possession but has the ability to obtain, i.e., procure, from other
entities. As is evident from the proposed rule explanation quoted
above, the intent is to apply the duty only with respect to information
that is already in the controlling contractor's possession, whether at
the site or off-site.
Second, OSHA is revising the text of paragraph (c)(2) of this
section to emphasize that the employer's existing responsibilities
under OSHA's multi-employer policy are not changed by this new rule. As
noted above and in the preamble to the proposed rule, the duties
provided in Sec. 1926.1402 supplement, and do not displace, the
controlling entity's duties under the multi-employer policy.\11\ The
multi-employer policy reflects the Secretary's reasonable
interpretation of the OSH
[[Page 47934]]
Act and requires controlling employers to exercise reasonable care to
prevent and detect violations on the site. See OSHA CPL 02-00-124,
Multi-Employer Citation Policy, Dec. 10, 1999. Under this policy, the
controlling employer has a duty to address hazards the employer either
creates or controls, regardless of whose employees are threatened by
the hazard. See, e.g. Universal Const. Co., Inc. v. Occupational Safety
and Health Review Comm'n, 182 F3d 726, 730 (10th Cir. 1999). Implicit
in those duties is a duty to notify employees of hazards the
controlling employer controls and has already detected, particularly
where such notification would prevent a violation. As noted in the
preamble to the proposed rule, requiring employers to include hazard
information needed by downstream employees is a necessary and
appropriate means to ensure that the employees are apprised of all
hazards to which they are exposed. (See 73 FR 59731, Oct. 9, 2008; see
also American Petroleum Institute v. OSHA, 581 F.2d 493, 510 (5th Cir.
1978).) (OSHA may require upstream employers to warn downstream
employees of concealed hazards when the upstream employer knows of
those hazards under remedial purpose of the OSH Act and OSHA's broad
authority to prescribe warning labels under 29 U.S.C. 655(b)(7)).
---------------------------------------------------------------------------
\11\ The Agency anticipates that the majority of controlling
entities will also be controlling employers for the purposes of the
multi-employer policy. However, even to the extent that a
controlling entity does not also meet the definition of a
controlling employer, the Agency has the authority to require the
controlling entity to comply with the requirements of Sec.
1926.1402. (See discussion of authority at 73 FR 59731-59732, Oct.
9, 2008.) With respect to the controlling entity's duty to warn the
operator and other users of the equipment about hidden ground
condition hazards, Sec. 1926.1402(c) constitutes OSHA's exercise of
its authority to ``prescribe the use of labels or other appropriate
forms of warning as are necessary to insure that employees are
apprised of all hazards to which they are exposed * * * and proper
conditions and precautions of safe use or exposure.'' 29 U.S.C.
655(b)(7).
---------------------------------------------------------------------------
OSHA is therefore clarifying in paragraph (c)(2) that the
controlling entity still must share both documentary and non-
documentary information about other hazards when the hazards are
``known to the controlling entity.'' This requirement only applies to
hazard information already in the possession of the controlling entity,
and does not require the controlling entity to obtain any additional
information. For example, if the controlling entity is setting up non-
crane equipment and discovers during the course of that work that there
is an undocumented void in the area where the crane is to be set up,
the controlling entity would be required to share that information with
the crane operator. Although this requirement extends beyond the
``documents'' specified in the proposed rule, it is consistent with the
rationale provided in the proposed rule and is supported by those
commenters who favor this provision: C-DAC sought to distinguish
between information in the possession of the controlling entity, and
information that must be sought out by the controlling entity. Thus, to
comply with Sec. 1926.1402(c)(2) of the final rule, the controlling
entity has no duty to seek out new information not already in its
possession; it is only required to share information already in its
possession, whether or not such information is contained in a document.
OSHA received several comments about whether these responsibilities
should rest with the controlling entity as it is defined in Sec.
1926.1401 (prime contractor, general contractor, construction manager
or any other legal entity which has the overall responsibility for the
construction of the project--its planning, quality and completion).
One commenter sought clarification on whether a construction
manager/general contractor or a site/project owner is considered the
controlling entity where the latter contracts with the former but
retains responsibility for oversight of certain matters (e.g., quality
control, safety). The commenter also wanted to know if the site/project
owner is still responsible for inspecting ground conditions under Sec.
1926.1402 if the construction manager/general contractor is the
controlling entity. (ID-0107.1.) As explained above, the ``controlling
entity'' is the entity which has the overall responsibility for the
construction of the project--its planning, quality and completion.
Where this responsibility is split among several entities, there may
not be a controlling entity. In that case, Sec. 1926.1402(d) applies:
whichever employer has authority to make or arrange for ground
preparations is required to ensure that the necessary ground
preparations are made. If more than one entity each possesses this
authority, then OSHA holds each of those entities separately liable for
the duty to ensure that the necessary ground preparations are made.
Some commenters suggested that the provision is unclear as to which
hazards, i.e., known or unknown, the controlling entity is required to
disclose. (ID-0166.1; -0214.1.) The purpose of this requirement is to
ensure that the user of the equipment and the operator are informed of
hazards that might not be known to them, because they are beneath the
set-up area, but are known to the controlling entity. In other words,
under this provision, the controlling entity must examine information
in its possession (such as site drawings, as-built drawings, and soil
analyses) to see if there are hazards beneath the set-up area. If there
are hazards identified in those documents, or if the controlling entity
has already identified other hazards not in those documents, the
controlling entity must inform the user and operator of the hazards. As
explained above and in the proposed rule preamble, new Sec. 1926.1402
does not place any new requirements on the controlling entity to
discover hazards that are not already known to it (see 73 FR 59741,
Oct. 9, 2008). The Agency concludes that the provision's language
adequately reflects this intent.
One commenter suggested that Sec. 1926.1402(c) be replaced with a
section that would simply encourage a cooperative meeting between the
controlling entity, the employer using the crane, and the employer best
situated to control and prepare the ground conditions. (ID-0218.1.)
OSHA determines that such a change would merely replicate the status
quo, an arrangement which the Committee found to be inadequate for
ensuring adequate ground conditions.
Several commenters argued that the crane operator, not the
controlling entity, should be required to obtain information about the
location of hazards beneath the equipment set-up area. (ID-0165.1; -
0179.1; -0191.1; -0197.1; -0214.1; -0232.1; -0235.1; -0285.1.) These
comments fell into one of two groups.
The first group argued that some controlling entities are either
not engaged in construction work,\12\ may have little to no expertise
concerning ground conditions in general, or may hire subcontractors to
work at a remote location of which the controlling entity may have
little knowledge. (See, e.g., ID-147.1; -0165.1; -0232.1; -0235.1.)
This group appears to read Sec. 1926.1402(c)(1) to mean that the
controlling entity must personally determine and provide the ground
conditions necessary to meet the requirements in Sec. 1926.1402(b).
---------------------------------------------------------------------------
\12\ In most cases entity that meets the definition of
``controlling entity'' will be engaged in construction.
---------------------------------------------------------------------------
C-DAC considered the concern that some controlling entities would
not have the expertise needed to determine if ground conditions were
adequate. The final rule therefore addresses this concern in two ways.
First, paragraph (c)(1) provides that the controlling contractor is
responsible for ``ensuring'' that these ground conditions are provided.
In other words, if the controlling contractor is not familiar with the
crane's requirements or with the ground conditions at the particular
site, then it must make sure that someone who is familiar with those
requirements and conditions provides what is required by Sec.
1926.1402(b). Second, under Sec. 1926.1402(e), if the A/D director or
operator determines that ground conditions are inadequate, the
controlling entity will, through a discussion, obtain the relevant
information. (See discussion of
[[Page 47935]]
1926.1402(e) at 73 FR 59741, Oct. 9, 2008).
One of the commenters suggested that Sec. 1926.1402(c) be revised
to place requirements on either the controlling entity or a competent
person designated by the controlling entity. (ID-0191.1.) As explained
above, Sec. 1926.1402, as promulgated, does not preclude a controlling
entity from using a competent person to provide the information it
needs to meet its responsibilities under this section. However, C-DAC's
experience indicates that it is important to ensure that one entity
with the authority to address ground condition hazards has the
responsibility to do so. To permit a controlling entity to divest
itself of its ground condition responsibilities would unduly fragment
responsibility for ground conditions, thus defeating one of the goals
of the section.
The second group argued that the rule may result in situations that
are beyond the capacity and responsibility of certain subcontractors.
(See, e.g., ID-0165.1; -0191.1; -0235.1.) One commenter suggested that
the definition of ``controlling entity'' be revised ``to reflect that
subcontractors and others who have little to do with the overall
project including site conditions and do not have the expertise to
determine compliance with crane manufacturer specifications are not
included in the definition, purpose, or requirements of a controlling
entity.'' (ID-0191.1) These commenters also argued that, because such
subcontractors do not know or control the site conditions, the
responsibilities in Sec. 1926.1402(c) should fall on the crane owner
or operator. The other two commenters were concerned about the effect
of the rule on heating, ventilating, air conditioning, and
refrigeration (HVACR) contractors in particular. (ID-0165.1; -0235.1.)
These commenters have misunderstood Sec. 1926.1402(c). For
example, an HVACR contractor, if contracted to do only HVACR work and
is not in control of the entire work site, would not be the controlling
entity, and would be subject to the limited requirements in Sec.
1926.1402(d) only if it had authority to make changes to the ground
conditions.
One commenter requested that the term ``user of the equipment'' be
defined. (ID-0214.1.) OSHA determines this term does not need to be
defined in Sec. 1926.1401, since its meaning is sufficiently clear.
``User of the equipment'' refers to the employer that is using the
equipment to perform a task. For example, a drywall installation
employer engaged in erecting precast wall panels would be a ``user of
the equipment'' if that employer directs a crane to hoist the panels
into place. Similarly, an employer installing wooden roof trusses would
be a ``user of equipment'' if that employer directs a crane to place
the trusses on the structure. A general contractor handling several
subcontracting areas, but not the controlling entity for the worksite,
would also be a ``user of equipment'' if it directs its subcontractors
to use a crane to hoist materials. In the latter example, the general
contractor and the subcontractor would each be a ``user of equipment.''
Paragraph (d)
In the event that no controlling entity exists, Sec. 1926.1402(d)
provides that the requirement in Sec. 1926.1402(c)(1) must be met by
the employer that has authority at the site to make or arrange for
ground preparations needed to meet the requirements of Sec.
1926.1402(b). For example, if the employer who hires the crane has the
authority to get the ground prepared in the absence of a controlling
entity, the responsibility for complying with Sec. 1926.1402(b) would
fall to that employer. However, that employer would not be required to
comply with Sec. 1926.1402(c)(2) because the information required to
be disclosed under Sec. 1926.1402(c)(2) is not likely to be available
to that employer.
One commenter suggested that paragraph (d) of this section be
revised to read that the requirements in Sec. 1926.1402(c)(1) must be
met by a competent person designated by the employer that has authority
at the site to make or arrange for ground preparations needed to meet
the requirements of Sec. 1926.1402(b). (ID-0191.1.) As explained above
with respect to a similar suggestion regarding Sec. 1926.1402(c), OSHA
determines this would have the effect of unduly fragmenting the
responsibility for ground conditions, which is contrary to the intent
of the provision.
For the reasons above, OSHA is promulgating Sec. 1926.1402(d) as
proposed.
Paragraph (e)
Proposed Sec. 1926.1402(e) established a mechanism for a
controlling entity to obtain information from the A/D director or the
equipment operator about insufficient ground conditions and the
preparations needed to correct the problem. Specifically (as discussed
above in the context of Sec. 1926.1402(c)(1)), if the A/D director or
equipment operator determines that ground conditions do not meet the
criteria in Sec. 1926.1402(b), that person's employer is required to
have a discussion with the controlling entity regarding the ground
preparations needed so that, with the use of suitable supporting
materials/devices (if necessary), the requirements in Sec.
1926.1402(b) can be met.
The Committee determined that, in some instances, the controlling
entity may lack the expertise needed to know what ground preparations
may be needed. In such cases, it is necessary for the information it
needs to be provided by the A/D director or operator, who has that
expertise, so that the preparations needed for safe crane operations
can be made. The Committee concluded that, in such circumstances, such
a discussion would make it more likely that the requirements in Sec.
1926.1402(b) would be met, which, as discussed above, is necessary for
safe crane operations.
One commenter suggested that the provision will encourage disputes.
The commenter suggested that rental companies would not accept a
controlling entity's ground conditions unless the controlling entity
purchases services from the rental company to improve them. (ID-
0105.1.)
OSHA determines that the commenter's concerns are unwarranted.
Section 1926.1402(e) is a mechanism for a controlling entity to obtain
information to facilitate its compliance with Sec. 1926.1402(c)(1).
Once ground conditions meet the criteria in Sec. 1926.1402(b), the
controlling entity is not required to make further improvements, even
if the rental company objects.
For the reasons above, OSHA is promulgating Sec. 1926.1402(e) as
proposed, with the substitution of the word ``director'' for the word
``supervisor'' to be consistent with the change made and discussed in
Sec. 1926.1404.
Paragraph (f)
At the public hearing, a representative of the railroad industry
explained that, in his experience, railroads use cranes to: remove,
replace or renew rails; build bridges; handle materials; and to pick up
and repair railroad cars. (ID-0342.) In addition, the witness explained
that the railroad industry uses a variety of construction equipment,
some on the tracks (locomotive cranes, rubber-tired off-road cranes
that are capable of being used on the tracks) and others off the tracks
(rubber-tired off road cranes, truck cranes, and service trucks). (ID-
0342.) The witness estimated that 95% of railroad industry crane
operations take place on or around railroad tracks. (ID-0342.)
[[Page 47936]]
One commenter expressed concern about the application of Sec.
1926.1402 to the railroad industry's use of cranes and requested an
exemption for the use of cranes on and alongside tracks. (ID-0176.1; -
0292.1.) The commenter expressed two specific concerns. First, that,
unlike most construction sites, a railroad construction site may
include many miles of railroad track. The commenter elaborated that the
time and cost associated with locating and checking site drawings and
soil analyses--which the commenter said may arguably be available to
the railroad industry--for thousands of miles of track would be
``exorbitant'' and would ``not appreciably lower the risks to the crane
operator.'' (ID-0176.1.)
As for the cost associated with locating and checking documents,
Sec. 1926.1402 does not require the controlling entity to possess or
acquire any particular documents or other information, but requires
that the controlling entity share any information about underground
hazards that it has in its possession with the crane user and operator.
As explained above, OSHA has replaced ``available to'' with ``in the
possession of'' to make this clear.
The commenter also suggested that there is no need to apply Sec.
1926.1402 to cranes used by railroads along track rights of way because
the Federal Railroad Administration (FRA) has regulations that specify
minimum requirements for roadbeds and areas immediately adjacent to
roadbeds that concern the ground conditions underneath and alongside
the track, as well as requirements for how the track must be laid.
The Federal Railroad Administration has established requirements
for the ballasts beneath railroad tracks,\13\ limited requirements for
the roadbed,\14\ and requirements for the track surface.\15\ The
failure of any one of these elements (the ballast, the roadbed or sub-
grade, or the track) is detrimental to the effectiveness of the system
as a whole. These provisions are designed to, in concert, enable trains
to travel safely, and involve conditions adjacent to the track only to
the extent that they affect track stability.
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\13\ The FRA regulations for the ballast (the foundation for
most railroad tracks) can be found at 49 CFR 213.103 and 213.334,
depending on the class of track. The provisions are otherwise
identical, and provides:
Unless it is otherwise structurally supported, all track shall
be supported by material which will--
(a) Transmit and distribute the load of the track and railroad
rolling equipment to the subgrade;
(b) Restrain the track laterally, longitudinally, and vertically
under dynamic loads imposed by railroad rolling equipment and
thermal stress exerted by the rails;
(c) Provide adequate drainage for the track; and
(d) Maintain proper track crosslevel, surface, and alignment.
\14\ FRA requirements address issues other than ground support
in the area adjacent to the track roadbed. Specifically, 49 CFR
213.31 requires that each drainage or other water carrying facility
under or immediately adjacent to the roadbed be maintained and kept
free of obstruction, to accommodate expected water flow for the area
concerned. Section 213.37 requires the control of vegetation on
railroad property which is on or immediately adjacent to roadbeds to
prevent fires, maintain visibility and signals, and to prevent
interference with other duties.
\15\ 49 CFR 213.51 et seq. contains requirements for the gage,
alignment, and surface of the track.
---------------------------------------------------------------------------
The comment is persuasive to the extent that it pertains to cranes
that operate on railroad tracks that are part of the general railroad
system of transportation because FRA's regulations address ground
support for the tracks.\16\ Therefore, OSHA has decided to exempt from
the requirements of Sec. 1926.1402 cranes used on railroad tracks that
are part of the general railroad system of transportation subject to
FRA regulation. To effectuate this change from the proposed rule, OSHA
has added Sec. 1926.1402(f), which exempts cranes that are designed
for use on railroad tracks and that are being used on tracks regulated
by the Federal Railroad Administration requirements at 49 CFR part 213.
In addition, OSHA has exempted railroad tracks and their underlying
support from the ground conditions inspection requirements in Sec.
1926.1412(d)(1)(x).
---------------------------------------------------------------------------
\16\ The general railroad system of transportation is defined as
``the network of standard gage track over which goods may be
transported throughout the nation and passengers may travel between
cities and within metropolitan and suburban areas.'' Appendix A to
49 CFR part 209. If a railroad that is part of the general railroad
system of transportation operates over track that is confined to an
industrial installation, that plant trackage is also considered part
of the general railroad system of transportation.
---------------------------------------------------------------------------
The commenter also stated that the FRA has regulations that
``concern[] the ground conditions * * * alongside the track.'' (ID-
0176.1.) The only aspects of the ground conditions of the area adjacent
to the track roadbed addressed by the FRA regulations are drainage and
vegetation.\17\ An area with adequate drainage can nonetheless present
problems for equipment set-up with respect to slope, compaction and
firmness, as well as have hazards beneath the set-up area. For this
reason, the Agency has decided not to exempt equipment used alongside
railroad tracks. Therefore, for example, a rubber tired off-road crane
designed for use on tracks would be exempted from Sec. 1926.1402 while
being operated on the tracks, but would be subject to the requirements
of Sec. 1926.1402 if used adjacent to the tracks.
---------------------------------------------------------------------------
\17\ See the description of FRA requirements that relate to the
area adjacent to the track roadbed in footnote 11.
---------------------------------------------------------------------------
Sections 1926.1403--1926.1406 Assembly and Disassembly
Sections 1926.1403 through 1926.1406 set out requirements designed
to ensure the safety of employees while equipment is assembled and
disassembled (and, in the case of tower cranes, during erecting,
climbing and dismantling). C-DAC members indicated that, in their
experience, the failure to adequately address hazards associated with
these processes is a significant cause of injuries and fatalities. The
Committee also concluded that the most effective way to reduce these
injuries and fatalities would be to have a standard that
comprehensively addresses these hazards (see also the Agency's
discussion of fatality data associated with assembly/disassembly at 73
FR 59741-59742, Oct. 9, 2008).
Note that the term ``procedures,'' which is used in the assembly/
disassembly provisions, is defined to include (but is not limited to)
instructions, diagrams, recommendations, warnings, specifications,
protocols and limitations (see Sec. 1926.1401). The operation of an
``assist'' crane used to help in the assembly/disassembly process is
not covered by the assembly/disassembly requirements but is covered by
the other sections of this standard.\18\
---------------------------------------------------------------------------
\18\ However, the rigging requirements in Sec. Sec.
1926.1404(r) and 1926.1425(c)(3) apply to the rigging used by the
assist crane.
---------------------------------------------------------------------------
One commenter suggested that the Agency clarify whether Sec. Sec.
1926.1403 through 1926.1406 apply to activities that modify or increase
the height of the crane such as ``jumping.'' (ID-0156.1.) ``Jumping''
(or ``climbing'') refers to the process of adding mast sections to a
tower crane to increase its height. In many cases a tower crane is
first erected and used at one height, and then as the height of the
structure being built increases, the height of the tower crane is
increased in stages to keep pace with it.
Irrespective of whether the crane is initially erected to its full
height, or is ``jumped'' in stages, the process of increasing the
height of the crane is an assembly/erection process. Sections 1926.1403
through 1926.1406 apply whenever the crane's height is modified. To
ensure that this intent is reflected in the standard, OSHA has added a
sentence to the definition of ``assembly/disassembly'' in Sec.
1926.1401 to this effect.
[[Page 47937]]
In proposed Sec. 1926.1401, ``assembly/disassembly'' was defined
to mean ``the assembly and/or disassembly of equipment covered under
this standard.'' With regard to tower cranes, `erecting and climbing'
replaces the term `assembly,' and `dismantling' replaces the term
`disassembly.' C-DAC did not originally include a definition of
``assembly/disassembly,'' but OSHA included this definition in the
proposed rule to avoid any implication that Sec. Sec. 1926.1403-
1926.1406 do not apply to tower cranes because the terms ``assembly''
and ``disassembly'' are not commonly used in the industry in referring
to tower cranes. Instead, the words ``erecting,'' ``climbing,'' and
``dismantling,'' are used, and the definition of ``assembly/
disassembly'' makes it clear that Sec. Sec. 1926.1403-1926.1406 also
apply to tower cranes.
Section 1926.1403 Assembly/Disassembly--Selection of Manufacturer or
Employer Procedures
Final Sec. 1926.1403 requires that when assembling or
disassembling equipment (or attachments), the employer must comply with
all manufacturer prohibitions applicable to assembly and disassembly
and must also comply with either manufacturer procedures, or employer
procedures, for assembly and disassembly. Employer procedures may be
used only where the employer can demonstrate that the procedures used
meet the requirements in Sec. 1926.1406 and may not be used during
rigging if the employer uses synthetic slings, as explained in the
discussion below regarding Sec. 1926.1404(r).
Two commenters suggested that only manufacturer procedures for
crane assembly/disassembly be allowed. (ID-0151.1; -0305.1.) One of
these commenters clarified its comment at the hearing (ID-0343.) and
confirmed this clarification in post-hearing submissions (ID-0387.1.)
that they did not believe the assembly/disassembly procedures should be
limited to just manufacturer procedures. The commenter suggested using
a procedure designed by a registered professional engineer or by a
qualified person. (ID-0387.1.) Note that Sec. 1926.1406(b) of the
final rule requires employer procedures to be developed by a qualified
person.
As explained in the proposed rule preamble, the Committee members
discussed whether employers should be required to comply with the
manufacturer's procedures, or if deviations from those procedures
should be allowed. The Committee determined that deviations should be
allowed for two reasons. First, manufacturers' procedures are typically
designed for use in ``ideal'' environments: Large, flat, dry,
unencumbered open areas. However, in C-DAC's experience, such
conditions are not typical, especially in urban areas. Consequently,
employers are currently unable to implement those procedures in those
situations. Second, members were of the view that there is often more
than one way to safely assemble and disassemble a crane, and that it is
unnecessary to mandate that in every case the manufacturer procedures
be used. The inclusion of specific requirements in the standard that
employer procedures must meet (see Sec. 1926.1406) addresses the
concern that those procedures ensure worker safety.
Another commenter suggested that employer procedures not be allowed
for climbing operations unless approved by the manufacturer. (ID-
0137.1.) As explained in the discussion below regarding Sec.
1926.1404(r), the Agency has decided to require manufacturer procedures
to be used with regard to the use of synthetic slings. Since the
commenter has not provided information substantiating the need for
manufacturer approval with respect to deviation from climbing
procedures, the Agency is unaware of any basis to conclude that the
requirements in Sec. Sec. 1926.1403 and 1926.1406 would be inadequate
to ensure the safety of employer procedures in this regard. Therefore,
OSHA has decided not to adopt the commenter's suggestion.
Another commenter suggested that if the Agency is going to allow
employer procedures, a written copy should be required to be kept on
the job site for the use of the entire crew. (ID-0178.1.)
The final rule requires that the A/D director understand the
assembly/disassembly procedures. In addition, the A/D director must
review the assembly/disassembly procedures prior to starting the
assembly/disassembly process unless the A/D director is experienced in
having used them on the same type and configuration of equipment and is
able to recollect the procedures such that review is unnecessary. (See
Sec. 1926.1404(b).) Furthermore, before beginning assembly/disassembly
operations, the A/D director must determine that the crew members
understand their tasks and the associated hazards, as well as any
hazardous positions/locations that they need to avoid. (See Sec.
1926.1404(d).) These requirements ensure that both the A/D director and
crew members understand the assembly/disassembly procedures that are
going to be undertaken.
C-DAC declined to require the procedures to be in writing and at
the site. In some cases, the procedures are not complex and are very
familiar to the A/D director. In such cases C-DAC determined that
having them in writing is not necessary. In other cases, such as where
the procedures are complex, the equipment is new to the employer, or
the A/D director has not often assembled/disassembled the equipment,
there is an inherent incentive for the employer to have them in
writing. In such instances, OSHA expects that the employer will have
written procedures on site to facilitate meeting the requirements in
Sec. Sec. 1926.1404(b) and (d). The Agency therefore finds that it is
not necessary to have a requirement that they be in writing and at the
site.
Lastly, a commenter suggested that this section incorporate by
reference the ANSI/ASSE A10.31 American National Standard, Safety
Requirements, Definitions and Specifications for Digger Derricks. (ID-
0178.1.) Because the commenter did not explain how incorporating this
standard would make the final rule more effective, OSHA has decided not
to incorporate ANSI/ASSE A10.31 into Sec. 1926.1403.
In the proposed rule, Sec. 1926.1404(n) set forth the requirement
(now set forth in this section) that an employer must comply with
manufacturer prohibitions. The Agency decided that this important
caveat to Sec. 1926.1403 would be better understood if it was moved to
this section. Therefore, Sec. 1926.1404(n) is now reserved and its
text is integrated in this section.
Additionally, OSHA has substituted an ``or'' in place of the
``and'' separating ``assembling'' and ``disassembling'' to clarify that
the listed requirements apply when the employer is assembling or
disassembling. Finally, a reference to Sec. 1926.1404(r) has been
added to Sec. 1926.1403(b) to clarify when employer procedures may not
be used.
Section 1926.1404 Assembly/Disassembly--General Requirements (Applies
to All Assembly and Disassembly Operations)
Paragraph (a) Supervision--Competent--Qualified Person
Section 1926.1404(a) requires assembly/disassembly to be directed
by a person who meets the criteria for both a competent person and a
qualified person, or by a competent person who is assisted by one or
more qualified persons (``A/D director''). Where the assembly/
disassembly is being performed by only one person, that person must
meet the criteria for both a competent person and a qualified person.
For purposes of this standard,
[[Page 47938]]
that person is considered the A/D director.
Section 1926.1401 defines ``A/D director'' as ``an individual who
meets this standard's requirements for an A/D director, irrespective of
the person's formal job title or whether the person is non-management
or management personnel.'' C-DAC constructed the definition in this way
to make clear that it is the substance of the individual's
qualifications, and not his or her job title or position in the company
hierarchy, that determines whether the person is qualified to act as an
A/D director.
In the proposed rule, OSHA used the term ``A/D supervisor.'' Some
commenters objected by written submission and at the hearing to the use
of the word ``supervisor'' in this provision. (ID-0182.1; -0199.1; -
0172.1; -0341.) They were concerned that the use of this term would
imply that anyone who serves in this role under Sec. 1926.1404 would
be considered a supervisor under the National Labor Relations Act
(``NLRA'').\19\ Their objections are rooted in the fact that the word
``supervisor'' is used and defined in the NLRA. The commenters' only
objection to Sec. 1926.1404(a) was the use of the term ``supervisor'';
they did not object to the actual duties or prerequisites spelled out
in the proposed rule applicable to this individual/team. Several
commenters suggested that the word ``supervisor'' be replaced with the
term ``designated individual'' and that the regulatory text be amended
to definitively indicate that OSHA has no intention of creating NLRA
implications by use of the term. (ID-0182.1; -0199.1; -0172.1.)
---------------------------------------------------------------------------
\19\ 29 U.S.C. 159-169 (1935).
---------------------------------------------------------------------------
The use of ``supervisor'' in this rule would not be determinative
of supervisor status under the NLRA.\20\ Nonetheless, OSHA understands
the commenters' concerns that workers in the industry may be confused
by the use of this term. However, the term ``designated individual,''
suggested by a labor representative and other commenters, could also
cause confusion, since it is ambiguous as to whether that person had
been granted the authority to correct hazards. Such ambiguity in the
minds of the A/D crew members regarding the authority of the A/D
supervisor would undermine the effectiveness of the provision itself.
---------------------------------------------------------------------------
\20\ With ``A/D supervisor,'' OSHA was merely creating a
descriptive term for use solely in the application of an OSHA
standard. OSHA's use of the term is a less significant designation
for the purposes of the NLRA than even a job title, which is itself
not determinative under the NLRA. See, e.g., N.L.R.B. v. St. Mary's
Home, Inc., 690 F.2d 1062, 1066 (4th Cir. 1982) (``As the [NLRB]
itself has put it, `job titles are meaningless).
---------------------------------------------------------------------------
Therefore, OSHA has decided to use the term ``A/D director.''
``Director'' is not a defined term in the NLRA nor does it have any
particular significance as a job title with respect to NLRA
jurisprudence. Furthermore, like ``A/D supervisor,'' it is consistent
with C-DAC's intent to use a term that conveys the concept of authority
to oversee the assembly/disassembly process. To remain consistent with
this new term, in Sec. 1926.1404(a)(1), OSHA has replaced the word
``supervised'' with ``directed.''
The A/D director has to meet the definition of both a ``competent''
and ``qualified'' person as OSHA defines those terms.\21\ The Committee
determined that having an A/D director overseeing the assembly/
disassembly process who had both the authority to correct a hazard and
who had the expertise of a qualified person was necessary to ensure the
safety of the operation. Several commenters strongly endorsed the new
A/D director requirement, believing the addition will improve workplace
safety. (See, e.g., ID-0343.)
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\21\ Section 1926.1401, Definitions, defines a ``competent
person'' as: ``one who is capable of identifying existing and
predictable hazards in the surroundings or working conditions which
are unsanitary, hazardous, or dangerous to employees, and who has
authorization to take prompt corrective measures to eliminate
them.'' Section 1926.1401 defines a ``qualified person'' in this
proposed standard as: ``One who, by possession of a recognized
degree, certificate, or professional standing, or who by extensive
knowledge, training, and experience, has successfully demonstrated
his ability to solve or resolve problems relating to the subject
matter, the work, or the project.'' These definitions are
essentially the same as the definitions in Sec. Sec. 1926.32(f) and
1926.32(m).
---------------------------------------------------------------------------
A commenter asserted that the qualifications for A/D directors are
too abstract and allowed for too much interpretation. The commenter
suggests that the qualifications for an A/D director should be more
similar to the requirements for operator certification in Sec.
1926.1427. (ID-0137.1.)
C-DAC thoroughly discussed the necessary qualifications for an A/D
director and determined that the best option for ensuring employee
safety during assembly/disassembly was to require an A/D director to be
both a qualified and a competent person. (See ID-0321.5.) Furthermore,
the terms qualified person and competent person and their definitions
are well established and well recognized in the construction industry.
For these reasons, OSHA is deferring to the judgment of the Committee
and is not making the suggested change.
Paragraphs (b) Knowledge of the Procedures and (c) Review of the
Procedures
Section 1926.1404(b) requires that the A/D director understand the
assembly/disassembly procedures. In addition, Sec. 1926.1404(c)
requires the A/D director to review the procedures immediately prior to
starting the process unless the director's experience in having used
them on the same type and configuration of equipment, and recollection
and understanding of the procedures is such that it makes their review
unnecessary.
These two sections work together to ensure that an experienced A/D
director understands the procedures. Even if an A/D director has
experience, he/she must still meet the knowledge requirement in Sec.
1926.1404(b). For example, if an A/D director configured a type of
crane a number of years ago and no longer remembers the procedures
applicable to such a crane, he/she does not fall within the experienced
A/D director exception, and must, accordingly, review the procedures
immediately prior to starting the process.
No comments were received on these provisions. They are promulgated
as proposed except that, in addition to a grammatical clarification,
Sec. 1926.1404(c) now contains a clearer knowledge requirement to
clarify the interplay between Sec. Sec. 1926.1404(b) and 1926.1404(c),
as described above.
Paragraph (d) Crew Instructions
Under this provision, before beginning assembly/disassembly
operations, the A/D director would have to ensure that the crew members
understand their tasks and the associated hazards, as well as any
hazardous positions/locations that they need to avoid.
No comments were received on this provision. It is promulgated as
proposed except that ``ensure'' replaces ``determine,'' to better
represent the role of the A/D director.
Paragraph (e) Protecting Assembly/Disassembly Crew Members Out of
Operator View
Section 1926.1404(e) requires that before a crew member goes to a
location that is out of view of the operator and is either in, on, or
under the equipment, or near the equipment (or load) where the crew
member could be injured by movement of the equipment (or load), the
crew member must inform the operator that he/she is going to that
location. Where the operator knows that a crew member went to a
location
[[Page 47939]]
covered by paragraph (e)(1) of this section, the operator must not move
any part of the equipment (or load) until the operator is informed in
accordance with a pre-arranged system of communication that the crew
member is in a safe position. An example of such a system would be the
use of a signal person who gives an all-clear signal to the operator
once the signal person sees that the employee has exited the hazard
area. Another example would be where the employee in the hazard area is
equipped with a portable air horn and, in accordance with a pre-
arranged horn signal system, sounds an appropriate signal to the
operator that the employee has exited the hazard area. To be effective,
the pre-arranged signal system needs to be designed so that this all-
clear signal could not be confused with a horn signal from some other
employee for another purpose.
One of the hazards identified by the Committee is an operator
swinging or moving the crane/derrick when assembly/disassembly
personnel are in a crush/caught-in-between zone and out of the
operator's view. The Committee concluded that an effective and
practical means of preventing these accidents would be through a
communication procedure that would provide key information to, and
coordination between, the operator and these workers.
One Committee member suggested that instead of requiring that the
crew member directly inform the operator of his/her location, the rule
should permit the crew member to provide this information to the
operator through a third person. For example, the crew member would
instruct his/her foreman to radio the information to the operator. OSHA
requested public comment on this suggestion in the preamble of the
proposed rule (see 73 FR 59743, Oct. 9, 2008).
Several commenters stated that the requirements should remain as
originally proposed and the Agency should not allow notification
through a third person. (ID-0205.1; -0213.1; -0182.1; -0187.1; -
0379.1.) One commenter believed that third party notification could
result in miscommunication or delays. (ID-0226; -0357.1.)
One commenter testified that introducing a third person into the
communications link would not present any danger so long as there was
some verbal confirmation. (ID-0344.)
OSHA agrees with C-DAC and the majority of the commenters. Indirect
communication between the crane operator and the employee working out
of view, through an intermediary, would increase the potential for
miscommunication. Therefore, the Agency has not changed the provisions
to allow third party notification.
Commenters raised additional issues regarding Sec. 1926.1404(e).
Proposed Sec. 1926.1404(e) provided two methods to assure that
employees would not be injured while working outside of the operator's
view. Under proposed Sec. 1926.1404(e)(2)(i), the operator would give
a warning that is understood by the crew member as a signal that the
equipment (or load) is about to be moved and would allow time for the
crew member to get to a safe position. Under proposed Sec.
1926.1404(e)(2)(ii), the operator was prohibited from moving any part
of the crane until informed, in accordance with a pre-arranged system
of communication, that the crew member is in a safe position.
Two commenters raised concerns regarding crew members actually
hearing warnings that were given in accordance with proposed Sec.
1926.1404(e)(2)(i). One commenter suggested that the operator should be
required to confirm that the employee has moved to a safe location
prior to initiating crane movement. (ID-0292.1.) Another commenter
suggested that a prearranged communications system should be required
because audible warnings can be drowned out by ambient noise. (ID-
0122.)
These comments identified two flaws in proposed Sec.
1926.1404(e)(2)(i) that were not addressed by C-DAC. First, a crew
member may not hear a warning signal that the equipment or load is
about to move and may not respond appropriately. Second, the crew
member may hear the warning signal but be unable to move from his/her
position. This would leave the crew member exposed to struck-by and
crushing hazards. As a result, the Agency has revised the provision by
deleting the option that was in proposed Sec. 1926.1404(e)(2)(i).
Proposed Sec. 1926.1404(e)(2) is otherwise included as proposed except
for one grammatical correction.
Paragraph (f) Working Under the Boom, Jib or Other Components
Section 1926.1404(f) requires that when pins (or similar devices)
are being removed, employees must not be under the boom, jib, or other
components, except where the employer demonstrates that site
constraints require employees to be so positioned. In such instances
the A/D director must implement procedures that minimize the risk of
unintended dangerous movement and minimize the duration and extent of
exposure under the boom. An example of such procedures is provided in
non-mandatory Appendix B.
Paragraph (g) Capacity Limits
This provision requires that the rated capacity limits for loads
imposed on the equipment, each of its components (including rigging),
lifting lugs and equipment accessories being assembled or disassembled
not be exceeded. The provision applies ``during all phases of assembly/
disassembly.'' (See the discussion of this provision at 73 FR 59744,
Oct. 9, 2008.) Note that where an assist crane is being used during the
assembly/disassembly of another crane/derrick, the requirements for
rated capacity during operations must be met under Sec. 1926.1417(o),
Compliance with rated capacity, with respect to the assist crane.
No comments were received on this provision. It is promulgated as
proposed except for one grammatical correction.
Paragraph (h) Addressing Specific Hazards
Section 1926.1404(h) requires that the A/D director supervising the
assembly/disassembly operation address known hazards associated with
the operation with methods to protect the employees from them, and
provides a list of specific hazards that are likely to cause serious
injury or death. The A/D director must consider each hazard, determine
the appropriate means of addressing it, and oversee the implementation
of that method.
No comments were received on this provision. It is promulgated as
proposed with a grammatical clarification and the addition of the words
``which include'' at the end of the introductory language to
acknowledge the employer's existing responsibility under Sec. 5(a)(1)
of the OSH Act (the ``general duty clause'') to address other
recognized hazards not listed in this paragraph.
Paragraph (h)(1) Site and Ground Bearing Conditions
This provision works in conjunction with Sec. 1926.1402, which
addresses ground conditions for both assembly/disassembly and use of
the equipment, including ground condition criteria. Section
1926.1404(h)(1) requires the A/D director to assess the ground
conditions for conformance with those criteria, and to assess the site
for suitability for assembly and disassembly. (See the discussion of
this provision at 73 FR 59744, Oct. 9, 2008.) No comments were received
on this provision; it is promulgated as proposed.
[[Page 47940]]
Paragraphs (h)(2) Blocking Material and (h)(3) Proper Location of
Blocking
These two provisions address the hazards associated with inadequate
blocking. Section 1926.1404(h)(2) requires the size, amount, condition
and method of stacking the blocking to be sufficient to sustain the
loads and maintain stability. Section 1926.1404(h)(3) requires that
when used to support booms or components, blocking must be
appropriately placed to protect the structural integrity of the
equipment, and prevent dangerous movement and collapse.
``Blocking'' (also referred to as ``cribbing'') is defined in Sec.
1926.1401 as ``wood or other material used to support equipment or a
component and distribute loads to the ground. Typically used to support
latticed boom sections during assembly/disassembly and under outrigger
floats.'' This definition is from A Glossary of Common Crane and
Rigging Terms, a publication by the Specialized Carriers & Rigging
Foundation (``SC&RF Handbook''). (ID-0035.)
Proper blocking plays an important role in assembly/disassembly
safety by reducing the risk of injuries from unplanned movement or the
collapse of equipment. (See the discussion of blocking at 73 FR 59744,
Oct. 9, 2008.)
One commenter suggested including a strength requirement for
blocking. (ID-0053.1.) OSHA determines that the provision as proposed,
which requires that the ``size, amount, condition and method of
stacking blocking must be sufficient to sustain the loads and maintain
stability,'' appropriately addresses blocking strength. Therefore, OSHA
has not made a change to the wording of the provision in this regard.
The version of paragraph (h)(3) in the proposed rule was applicable
only to lattice booms and components. In the proposed rule's preamble,
OSHA asked for public comment on whether the provision should also
apply to other types of booms and components (i.e., those for hydraulic
cranes). (See the discussion of this provision at 73 FR 59745, Oct. 9,
2008.)
Several commenters stated that proper blocking is necessary for
hydraulic cranes in addition to lattice boom cranes. (ID-0213.1; -
0205.1; -0118.1.) In addition, hearing testimony also indicated that
there is a need for this requirement to apply to hydraulic cranes
because they are sometimes assembled or disassembled, at least
partially, in the field. (See ID-0343.1.)
OSHA has concluded that the requirement is necessary for both
hydraulic and lattice boom cranes and components. At times, portions of
hydraulic cranes are assembled and disassembled in the field and need
proper blocking. As a result, the word ``lattice'' in the proposed
provision's language has not been included in the final rule so that
the provision applies to hydraulic cranes and components as well as
lattice boom cranes and components.
Paragraph (h)(4) Verifying Assist Crane Loads
This paragraph requires that, when using an assist crane, the loads
that will be imposed on the assist crane at each phase of assembly/
disassembly must be verified in accordance with Sec. 1926.1417(o)(3).
The purpose of this requirement is to avoid exceeding the assist
crane's rated capacity. ``Assist crane'' is defined in Sec. 1926.1401
as ``a crane used to assist in assembling or disassembling a crane.''
When used for this purpose, an ``assist crane'' is subject to all
applicable provisions of this standard, including the requirement of
Sec. 1926.1417(o) that it not be used in a manner that exceeds its
rated capacity. (See the discussion of this provision at 73 FR 59745,
Oct. 9, 2008.)
No comments were received on this provision; it is promulgated as
proposed except that the purpose of the requirement is now included
above in the preamble, rather than in the rule text, to increase the
clarity of the requirement.
Paragraph (h)(5) Boom and Jib Pick Points
This provision would require the A/D director to address the hazard
of using improper boom and jib pick points. Specifically, the points of
attachment of rigging to a boom/jib or boom/jib section(s) must be
suitable for preventing structural damage. Such damage could compromise
structural integrity and, in some cases, may not be immediately
noticed. If that component were nonetheless used, the boom/component
could fail.
The points of attachment also need to facilitate the safe handling
of these components. (See the discussion of this provision at 73 FR
59745, Oct. 9, 2008.) No comments were received on this provision; it
is promulgated as proposed.
Paragraph (h)(6) Center of Gravity
In a variety of instances the method used for maintaining stability
during assembly/disassembly depends on supporting or rigging a
component (or set of components) so that it remains balanced throughout
the process. In such instances the A/D director is required to identify
the center of gravity of the load. (See the discussion of this
provision at 73 FR 59745, Oct. 9, 2008.) No comments were received on
this provision. It is promulgated as proposed except for one
grammatical change.
Paragraph (h)(7) Stability Upon Pin Removal
This paragraph requires that each of the following must be rigged
or supported to maintain stability upon the removal of the pins: Boom
sections, boom suspension systems (such as gantry A-frames and jib
struts), and components. ``Boom suspension system'' is defined in Sec.
1926.1401 as ``a system of pendants, running ropes, sheaves, and other
hardware which supports the boom tip and controls the boom angle.''
This definition is the same as that for ``boom suspension'' in the
SC&RF Handbook. (See the discussion of this provision at 73 FR 59745,
Oct. 9, 2008.)
No comments were received on this provision; it is promulgated as
proposed except that the conjunctive ``and'' is substituted for ``or''
to make it clear that all three of the listed items (boom sections,
boom suspension systems, and components) must be properly rigged, not
just any one of those.
Paragraph (h)(8) Snagging
As explained in the preamble to the proposed rule, ``snagging''
occurs when pendant cables hung alongside the boom are caught
(``snagged'') on the pins, bolts, or keepers as the operator raises the
boom (see 73 FR 59746, Oct. 9, 2008.) Snagging could damage the cables
or other equipment and result in injury. This paragraph requires that
suspension ropes and pendants not be allowed to catch on the boom or
jib connection pins or cotter pins (including keepers and locking
pins). The definition for pendants can be found in Sec. 1926.1401.
This definition is similar to that in the SC&RF Handbook, but with the
addition of the reference to ``bar type'' pendants. (See the discussion
of this provision at 73 FR 59746, Oct. 9, 2008). No comments were
received on this provision; it is promulgated as proposed.
Paragraph (h)(9) Struck by Counterweights
Final Sec. 1926.1404(h)(9) requires the A/D director to address
the potential for unintended movement from inadequately supported
counterweights and from hoisting counterweights. ``Counterweight'' is
defined in Sec. 1926.1401 as a ``weight used to supplement the weight
of equipment in providing stability for lifting loads by
counterbalancing those loads.'' This
[[Page 47941]]
definition is taken from the SC&RF Handbook. (See the discussion of
this provision at 73 FR 59746, Oct. 9, 2008.)
No comments were received on this provision; it is promulgated as
proposed except that OSHA has replaced the adjective ``unexpected''
with ``unintended'' to remain consistent throughout this section.
Paragraph (h)(10) Boom Hoist Brake Failure
This provision addresses a hazard that can occur both during
assembly and disassembly, although it is more typically a hazard during
assembly. In many older cranes the boom hoist brake mechanism has an
external or internal mechanical brake band that operates by pressing
against the hoist drum. As the configuration of the crane changes and,
for example, more boom is added, this type of boom hoist brake may slip
unless it has been adjusted to hold the extra weight. The Committee was
concerned that the inability of an unadjusted brake to hold the
increased load will not be evident until the additional boom section(s)
has been added and the operator attempts to rely on the brake in a
subsequent phase of the operation. If the operator does not first raise
the boom a small amount after the section has been added (with the crew
clear of the boom) to test the brake, employees could be injured later
in the process when the operator manipulates the boom and finds that
he/she is unable to brake it.
To address this hazard, the employer is required to test the brake
to determine if it can hold the load. In many cases, if it is
insufficient, an adjustment to the brake will correct the problem. If
it remains insufficient, the employer is required to use a boom hoist
pawl, other locking device, back-up braking device, or another method
of preventing dangerous boom movement (such as blocking or using an
assist crane to support the load) from a boom hoist brake failure.
The Agency was concerned that the text of the proposed provision
was not sufficiently clear regarding the timing of this brake test, so
it solicited public comment on this issue. OSHA's interpretation was
that the test would need to be done immediately after each section (or
group of sections) is installed, and after all sections are in place
(see 73 FR 59746, Oct. 9, 2008).
One commenter recommended revising the provision to specify that
the brake be tested prior to the commencement of lifting. (ID-0214.1.)
However, two other commenters wrote that the regulatory text should
remain as is and should not specify when to perform the brake test.
They point out that C-DAC's intent in Sec. 1926.1404(h) was to
identify hazards and require that they be addressed by the A/D
director. C-DAC designed Sec. 1926.1404(h) so that, for the most part,
the A/D director could determine the procedures (or how to implement
specified requirements) that would be best suited in each situation to
protect against those hazards. They also state that, in some cases, the
specific procedure that OSHA referred to in the proposed rule preamble
could result in a greater hazard. (ID-0205.1; 0213.1.)
OSHA agrees that specifying an overly-detailed procedure to address
this hazard would be inappropriate given the myriad of circumstances in
which this issue may arise. However, the Agency also determined that
the proposed rule's regulatory text did not identify the purpose of the
provision with sufficient clarity. Therefore, the final standard does
not specify that the test has to be performed at a certain time that is
tied to the installation of any particular section, but instead
requires a test whenever the A/D director will be relying on the boom
hoist brake to function properly. In short, the test needs to be
performed, prior to reliance being placed on the brake, and the test
needs to accurately account for the loads that will be placed on the
brake. The provision in the final rule, therefore, requires the boom
hoist brake to be tested prior to each time reliance on the boom hoist
brake is anticipated.
Paragraph (h)(11) Loss of Backward Stability
The Committee identified three points during the assembly/
disassembly process at which there is a heightened risk of loss of
backward stability. These are: when swinging the upperworks, during
travel, and when attaching or removing equipment components. Therefore,
under this provision, before any of these occur, the A/D director is
required to consider whether precautions need to be instituted to
ensure that backward stability is maintained. No comments were received
on this provision. However, OSHA is not including the drawing described
as Figure 1 in the proposed rule. See the discussion of the removal of
this figure below in Sec. 1926.1405. Except for the removal of any
reference to figure 1, OSHA is promulgating the provision as proposed.
Paragraph (h)(12) Wind Speed and Weather
Section 1926.1404(h)(12) requires the A/D director to address
hazards caused by wind speed and weather to ensure that the safe
assembly/disassembly of the equipment is not compromised.
The Committee considered the option of establishing a maximum wind
speed, as well as the option of incorporating ANSI's provisions
regarding wind speed. However, it determined that selecting any one
particular speed as a maximum would be arbitrary because of the variety
of factors involved. For example: different cranes and crane types vary
with respect to the ``sail'' area they present; an assembly process
involving use of an assist crane may require lower wind speeds than one
in which no assist crane is used; and assembly/disassembly operations
done ``in the air'' (that is, with the boom elevated in the air,
without ground support for the boom) may require lower wind speeds than
a boom assembled/disassembled on the ground. The Committee ultimately
decided that a better approach would be to have the A/D director
determine the maximum safe wind speed under the circumstances.
Other weather conditions that can affect the safety of assembly/
disassembly would include, for example, ice accumulation on crane
components. Ice can both add to the weight of the components and create
slippery, dangerous surfaces on which employees work. The A/D director
must address weather conditions that affect the safety of the
operation. No comments were received on this provision; it is
promulgated as proposed with a slight rewording for clarity.
Paragraph (i) [Reserved.]
Paragraph (j) Cantilevered Boom Sections
Members of the Committee determined that a common mistake in
assembly/disassembly is cantilevering too much boom. When too much boom
is cantilevered, structural failure can occur in components such as the
mast/gantry, boom sections and lifting lugs. Employees may be struck by
falling components from this type of failure. To prevent accidents from
cantilevering too much boom during assembly/disassembly, this provision
requires manufacturer's limitations on cantilevering not to be
exceeded.
If the manufacturer's limitations are not available, the employer
is required to have a registered professional engineer (RPE) determine
the appropriate limitations, and to abide by those limitations. The
Committee concluded that in such cases there would need to be a
requirement that the RPE's determination be in writing to ensure that
the assessment has been done.
[[Page 47942]]
This provision is promulgated as proposed with one grammatical
correction to make it clear that it is the limitations that must not be
exceeded.
Paragraph (k) Weight of Components
As with any load to be lifted by a crane/derrick, the weight of the
components must be available to the operator so that the operator can
determine if the lift can be performed within the crane/derrick's
capacity. This requirement applies irrespective of whether the
component is being hoisted by the crane being assembled/disassembled or
by an assist crane.
No comments were received on this provision. OSHA is promulgating
this provision largely as proposed, but has modified the text to make
it clear that assembly/disassembly is prohibited when the weight of
each of the components is not readily available.
Paragraph (l) [Reserved.]
Paragraph (m) Components and Configuration
This provision deals with the selection of components that will be
used to comprise the crane/derrick, the configuration of the equipment,
and its inspection upon completion of assembly. (See the discussion of
this provision at 73 FR 59747, Oct. 9, 2008.)
No comments were received on this provision. However, to be
consistent with the requirements of Sec. 1926.1403, the word
``prohibition'' has been added to Sec. 1926.1404(m)(1)(i); otherwise,
it is promulgated as proposed with the addition of commas to clarify
that this paragraph only applies to the selection of components and
configuration to the extent that either one affects the capacity or
safe operation of the equipment.
Note that another section (Sec. 1926.1434) allows cranes/derricks
to be modified under certain circumstances. To the extent a crane/
derrick is modified in accordance with Sec. 1926.1434, the employer is
not required to follow the manufacturer's original instructions,
limitations and specifications regarding component selection and
configuration regarding those modifications. Instead, under Sec.
1926.1404(m)(1)(ii), the employer is required to follow the component
selection and configuration requirements approved in accordance with
Sec. 1926.1434.
Paragraph (n)
For clarity, OSHA has reserved this paragraph and incorporated its
substance in Sec. 1926.1403, as explained above in the discussion
regarding Sec. 1926.1403. (See the discussion of this provision at 73
FR 59747, Oct. 9, 2008.)
Paragraph (o) Shipping Pins
This provision requires reusable shipping pins, straps, links and
similar equipment to be removed. Once they are removed they must either
be stowed or otherwise stored so that they do not present a falling
object hazard. No comments were received for this paragraph; it is
promulgated as proposed.
Paragraph (p) Pile Driving
This provision prohibits equipment used in pile driving operations
from having a jib attached. An attached jib could be dislodged during
pile driving operations and cause structural damage to the boom,
potentially causing the boom to fail or diminishing its capacity. (See
the discussion of this provision at 73 FR 59748, Oct. 9, 2008.) No
comments were received on this provision; it is promulgated as
proposed.
Paragraph (q) Outriggers and Stabilizers
This paragraph specifies requirements regarding outriggers. (See
the discussion of this paragraph at 73 FR 59748, Oct. 9, 2008.)
OSHA received several comments with regard to Sec. 1926.1404(q)(2)
in relation to stabilizers. One commenter stated that it is necessary
to add the term ``stabilizers'' to the regulatory text for the
provision to properly apply to articulating cranes. (ID-0206.1.) The
commenter explains that, as opposed to outriggers, which are designed
to take all load off of the tires, stabilizers are designed to relieve
some, but not all, of the sprung weight for the purpose of increasing
the stability of the vehicle. The commenter believes that the provision
as written in the proposed rule would lead to improper use of
stabilizers in such a way that is dangerous and against manufacturer
recommendations. A second commenter emphasized that cranes equipped
with stabilizers (and not outriggers) do not raise the wheels off the
ground. (ID-0292.)
OSHA agrees with the commenters that it is necessary to address
stabilizers in Sec. 1926.1404(q). With the exception of Sec.
1926.1404(q)(2), the term ``stabilizers'' has been added so that each
provision also applies to stabilizers. Section 1926.1404(q)(2) does not
apply to stabilizers because they are not designed to remove all weight
from the vehicle's wheels.
One comment was received in regards to Sec. 1926.1404(q)(4). Under
that provision, each outrigger must be visible to the operator or to a
signal person during extension and setting. The commenter suggested
that the requirement be modified so that it would also apply to the
retraction of outriggers. (ID-0053.1.) The commenter indicated that
employees can be subject to crushing and pinching hazards during
outrigger retraction and this would be less likely to occur if it the
outrigger had to be visible to the operator or signal person during
retraction.
OSHA agrees that crushing and pinching hazards exist during
outrigger retraction. However, Sec. 1926.1404(q) is designed to
prevent the overturning of the crane; it does not address the crushing
and pinching hazards posed by operation of the equipment in struck-by
or crushed/by locations outside the operator's view. The final rule
contains other provisions that are designed to address such hazards.
(See, e.g., Sec. 1926.1404(e).) Therefore, the Agency is not
incorporating the commenter's suggestion into Sec. 1926.1404(q) and is
promulgating the provision largely as proposed.
Paragraph (r) Rigging
This paragraph specifies requirements regarding rigging during the
crane assembly/disassembly process. It includes a requirement for a
qualified rigger and sets forth specifications regarding the use of
synthetic slings.
C-DAC did not focus on the proper use of synthetic sling rigging
during the crane assembly/disassembly process, primarily because
another standard--29 CFR 1926 Subpart H (Materials handling, storage,
use, and disposal)--already addresses some of the hazards associated
with the use of synthetic slings in construction.
However, after C-DAC completed its work, a catastrophic crane
collapse resulted in a reevaluation of subparts N and H with regard to
synthetic slings and rigging expertise. On March 15, 2008, a tower
crane in New York City collapsed, killing six construction workers.
OSHA's investigation of that incident focused on the use of synthetic
slings to hold a bracing collar that was being installed.
The Agency determined that neither subpart H (Rigging equipment for
material handling) nor subpart N specifically address the hazard posed
when a synthetic sling is used in a manner causing compression or
distortion of a sling, or when the sling is in contact with a sharp
edge. The Agency asked for public comment on whether to prohibit using
synthetic slings altogether in the assembly/disassembly process or,
alternatively, to
[[Page 47943]]
require padding or similar measures to protect the slings from being
damaged (see 73 FR 59742, Oct. 9, 2008).
Commenters generally opposed prohibiting the use of synthetic
slings during assembly/disassembly, as long as appropriate precautions
are taken. (See, e.g., ID-0205.1; -0213.1; -0343.) Specifically,
commenters stated that synthetic slings have the advantage of helping
to prevent damage to equipment components, but need to be protected
from cuts, compression, distortion and reduction of capacity, by the
use of ``softeners'' (i.e., padding). (See, e.g., ID-0187.1; -0343.)
One commenter testified that it does not oppose synthetic slings if
they are listed in the manufacturer's procedures or if they are not
specifically prohibited by the manufacturer. (ID-0343.) Some commenters
also emphasized the need for such slings to be properly rated and
inspected. (See, e.g., ID-0226.) Another commenter recommended
requiring rigging equipment for material handling to be inspected. One
commenter advocated prohibiting synthetic slings used in conjunction
with tower crane erection, unless the manufacturer specifically allows
their use. (ID-0156.)
Commenters also suggested adding requirements regarding the
qualifications and training of riggers. Specifically, several
commenters suggested requiring certification of riggers similar to
operator certification requirements in Sec. 1926.1427. (ID-0126; -
0132.1; -0136; -0204.1; -0311.1; -0362.1.) One commenter opposed
certification, but supported requiring training. Another suggested
third party certification or licensing of supervisors. (ID-0156.1.)
Another advocated employer qualification of riggers. (ID-0197.1.)
OSHA acknowledges that synthetic slings have certain advantages,
such as preventing damage to equipment components, and no commenters
advocated a prohibition in all instances. OSHA has therefore decided
not to prohibit the use of synthetic slings in assembly/disassembly.
There must, however, be adequate safeguards for their use.
OSHA agrees with the comment that stressed the importance of
inspecting slings. However, as Sec. 1926.251(a)(1) already requires
that all rigging equipment be inspected, no additional requirement is
needed in subpart CC regarding the inspection and removal of synthetic
slings.
The Agency finds that it is vital that synthetic slings be
protected from abrasive, sharp or acute edges, since any of those
conditions can damage a synthetic sling, resulting in a failure. Also,
based on its review of the record, the Agency concludes that such
slings must be protected from configurations that could cause
compression or distortion of the sling, since that can also cause
failure. For example, wrapping a synthetic sling through a V-angled
junction point of steel members in a tower mast section can cause the
sling to compress and distort under load, compromising its capacity.
As was demonstrated by the March 2008 collapse in New York City,
such protection is needed whenever the object that is in contact with
the sling--whether it is a load or something else, such as a crane
component used to anchor the sling--has such an edge or configuration.
Therefore, OSHA is including a requirement in the final Sec.
1926.1404(r)(2) to protect employees from such synthetic slings hazards
when used in assembly/disassembly.
OSHA also learned from its investigation of the March 2008 collapse
that it is vital that synthetic slings be selected and used properly.
In particular, the sling manufacturer's recommendations must be
observed strictly as the capacity ratings set by the manufacturer are
highly dependent on the sling being used as specified by the
manufacturer. (See ID-0336.) Consequently, employers, even with the
assistance of a qualified rigger, will typically not have the ability
to develop safe alternative procedures regarding their use. Therefore,
the Agency is including a requirement in the final Sec.
1926.1404(r)(3) (also noted in Sec. 1926.1403(b)) that when a
synthetic sling is used during assembly/disassembly, the sling
manufacturer's instructions, limitations, specifications and
recommendations must be followed.
Note that Sec. 1926.1403 requires that the employer ``comply with
all applicable manufacturer prohibitions.'' Therefore, if a
manufacturer prohibits the use of synthetic slings during assembly/
disassembly, OSHA prohibits that use of such slings. Furthermore, while
Sec. 1926.1403 requires the employer to comply with either the
manufacturer's or the employer's assembly/disassembly procedures (see
Sec. 1926.1403(a) and (b)), employer procedures may be used only if
the employer meets a two-prong test. First, the employer must not be
using synthetic slings. Second, the employer must demonstrate that its
procedures meet the requirements in Sec. 1926.1406.
There may be cases in which the equipment manufacturer does not
prohibit the use of synthetic slings during assembly/disassembly, but
identifies wire rope slings in its procedures. In such cases, the
employer may only use synthetic slings if it establishes and implements
its own procedures under Sec. 1926.1403(b) and can demonstrate that
those procedures, including the use of synthetic slings, meet the
criteria requirements in Sec. 1926.1406.
As noted above, several commenters advocated adding a requirement
that rigging be performed by qualified riggers. One local government
stated that although rigging operations are critical to completing
crane work, rigging operations involve a high level of risk if not
performed properly. (ID-0362.1.) The local government's experience
supports the proposition that human error causes most rigging
accidents. (ID-0362.1.) The New York crane collapse and the subsequent
OSHA investigation further highlight the dangers associated with
improper rigging during assembly/disassembly, and the need to address
this hazard was supported by all of the commenters who addressed this
issue. OSHA notes that although several commenters pointed to the need
for qualified riggers early on in the comment process, and again during
the hearing, no one expressed any disagreement about the need to
address the hazard by requiring riggers to be qualified. This means of
addressing the hazard is consistent with the means that C-DAC applied
when it identified a hazard related to rigging in Sec. 1926.1425(c),
and the Agency relies on C-DAC's expertise in selecting the appropriate
method to address a rigging hazard. OSHA is therefore requiring in
Sec. 1926.1404(r)(1) that all rigging for crane assembly/disassembly
be performed by a qualified rigger.
Finally, the fact that the commenters did not limit their
suggestions on rigging qualifications to rigging synthetic slings leads
the Agency to conclude that all rigging done for assembly/disassembly,
irrespective of type, is a safety-critical function. One person
testified about how he was involved with improper rigging which led to
the death of his coworker. He stressed the importance of having
qualified riggers, stating that in his experience most of the accidents
he has seen and been involved with or investigated have involved
problems with rigging. (ID-0343.)
After considering the record, OSHA is including the qualified
rigger requirement in the final rule and it applies to all rigging used
for assembly/disassembly.
[[Page 47944]]
Section 1926.1405 Disassembly--Additional Requirements for Disassembly
of Booms and Jibs (Applies to Both the Use of Manufacturer Procedures
and Employer Procedures)
Section 1926.1405 requires that none of the pins in the pendants be
removed (partly or completely) when the pendants are in tension. In
addition, none of the pins (top or bottom) on boom sections located
between the pendant attachment points and the crane/derrick body are to
be removed, partly or completely, when the pendants are in tension.
None of the pins (top or bottom) on boom sections located between the
uppermost boom section and the crane/derrick body are to be removed,
partly or completely, when the boom is being supported by the uppermost
boom section resting on the ground (or other support). Finally, none of
the top pins on boom sections located on the cantilevered portion of
the boom being removed (the portion being removed ahead of the pendant
attachment points) are to be removed (partly or completely) until the
cantilevered section to be removed is fully supported. (See the
discussion of these requirements at 73 FR 59748, Oct. 9, 2008.)
The Committee determined that many of the accidents associated with
cranes occur during the removal of pendant, boom and jib pins. The
Committee determined that accidents typically occur because of a
failure to recognize that, in certain situations, particular pins are
``in tension.'' If partly or fully removed while in that state the
result can be unplanned movement of a component or the collapse of the
boom or jib.
Consequently, the Committee concluded that the removal of pendant,
boom section and jib pins warrants heightened attention. This section
focuses on protecting employees from these hazards during the
dismantling of booms and jibs, either when disassembling the crane/
derrick or when changing the length of a boom or jib. To make clear
that ``dismantling'' includes activities such as shortening a boom,
final Sec. 1926.1401 defines ``dismantling'' to include ``partial
dismantling (such as dismantling to shorten a boom or substitute a
different component).''
In this section, the Committee identified particular scenarios
that, in the experience of many of the Committee members, pose specific
hazards in disassembly if the wrong pins (that is, pins that are in
tension) are partly or completely removed. The Committee concluded that
the failure to follow the provisions would very likely result in
unintended movement and/or collapse of the components. OSHA agrees that
these requirements will help to prevent unintended movement or collapse
of booms or jibs as they are being disassembled.
Several comments were received regarding the illustrations in this
section of the proposed rule. Two commenters noted the illustration of
a tower crane in figure 2 of the proposed rule and suggested it be
replaced with a mobile crane. (ID-0205.1;-0213.1.) Two commenters
recommended that figures 4 and 6 be changed such that no pins would be
permitted to be removed without blocking the entire boom. (ID-0131.1; -
0292.) Specifically, these commenters did not believe that the bottom
boom connecting pins could be removed due to the weight of the
cantilevered boom exerting force on these bottom connecting pins. They
stated that if there was sufficient clearance between the connecting
lugs to enable the pins to be removed, the boom could move downward
upon the removal of the pins.
Based upon C-DAC's expertise, OSHA determines that figures 2, 4 and
6 in the proposed rule were accurate depictions as to blocking, but the
proposed arrows may have been confusing to the extent that commenters
incorrectly understood that the removal of pins would be allowed where
arrows did not appear. To avoid confusion, OSHA is not including any of
the assembly/disassembly figures from the proposed rule in the final
rule.
Section 1926.1406 Assembly/Disassembly--Employer Procedures--General
Requirements
Section 1926.1406 sets requirements that must be met if an employer
elects to use its own procedures for assembling and disassembling a
crane/derrick instead of those of the manufacturer. (See the discussion
of this provision at 73 FR 59748, Oct. 9, 2008.)
One commenter wrote that, to ensure safe assembly and disassembly,
employer procedures must not be allowed. In the preamble to the
proposed rule, OSHA explained its rationale and the basis of C-DAC's
recommendation that employer procedures be allowed where they meet the
specified criteria in Sec. 1926.1406. (See full discussion at 73 FR
59742, 59748, Oct. 9, 2008). The commenter did not challenge the
rationale or provide any evidence of why employer procedures that
comply with Sec. 1926.1406 would be insufficient. The Agency is
therefore adopting Sec. 1926.1406 as proposed for the reasons
explained in the preamble to the proposed rule, with several minor
clarifications.
In Sec. 1926.1406(a), the phrase ``assembly/disassembly'' replaces
``assembling or disassembling'' to make this section consistent with
other sections of the rule. Also in Sec. 1926.1406(a), OSHA has
removed the phrase ``are designed to'' to increase clarity. In Sec.
1926.1406(a)(1), the phrase ``any part'' replaces ``all parts'' to make
it clear the duty to prevent dangerous movement in any part of the
equipment. This provision is otherwise promulgated as proposed with
several grammatical corrections.
Sections 1926.1407-1926.1411 Power Lines
Introduction
Final Sec. Sec. 1926.1407 through 1926.1411 contain requirements
designed to help ensure the safety of employees while cranes/derricks
are being assembled, disassembled, operated, or while they travel under
power lines.
Previously, subpart N, in former Sec. 1926.550(a)(15), addressed
power line hazards by specifying the minimum distance that must be
maintained between a crane and an energized power line. For lines rated
50 kilovolts (kV) or below, the minimum distance was 10 feet; for lines
over 50 kV, the minimum distance was generally 10 feet plus 0.4 inches
for each 1 kV over 50 kV (we will refer to this subpart N requirement
in this preamble as the ``10-foot rule'').
However, the subpart N provisions, which instructed employers to
maintain a minimum clearance distance, did little by way of requiring
employers to implement measures to help prevent operators from
inadvertently breaching that distance. The only preventative measure in
subpart N was a requirement, in former Sec. 1926.550(a)(15)(iv), to
use a spotter ``where it is difficult for the operator to maintain the
desired clearance by visual means.'' In discussing how to reduce power
line fatalities, the Committee determined that a systematic, proactive
approach to preventing power line contact is needed (see the Agency's
explanation for the need for these provisions in the proposed rule
preamble at 73 FR 59748-59750, Oct. 9, 2008).
Brief Overview of Requirements
The standard requires the implementation of a systematic, proactive
approach to dealing with the hazard of power lines. This approach is
comprised of the following steps: (1)
[[Page 47945]]
Identify the work zone and assess it for power lines--determine how
close the crane could get to them. The employer has the option of doing
this assessment for the area 360 degrees around the crane or for a more
limited, demarcated area; (2) If the assessment shows that the crane
could get closer than a trigger distance--20 feet for lines rated up to
350 kV (50 feet for lines rated over 350 kV)--then requirements for
additional action will be triggered.
The voltages given in the final rule are phase-to-phase system
voltages on the power lines. It should be noted that the system
voltages for power lines generally take three forms. First, there is
the actual voltage on the line. This voltage varies from one moment to
the next as conditions on the power line change. Second, there is the
nominal voltage on the line that is used to designate its voltage. The
actual operating voltage varies above and below this voltage. (See the
definition of ``voltage, nominal'' in subpart K of the Construction
Standards, Sec. 1926.449.) Third, there is the maximum operating
voltage on the line. This represents the maximum voltage that can
appear on a power line and is 5 percent above the nominal voltage on
the line. (See IEEE Std. 516-2009.) For purposes of the final rule, the
power line voltage is the maximum operating voltage for that line. This
approach, which is consistent with the determination of minimum
approach distances in Sec. 1910.269,\22\ ensures that the minimum
clearance distance is appropriate when the voltage on the line rises to
its maximum. The following table lists the maximum operating voltages
over 50 kV for power line systems commonly found in the U.S.
---------------------------------------------------------------------------
\22\ For further information, see Appendix B to Sec. 1910.269.
------------------------------------------------------------------------
Maximum
operating
Nominal voltage range (kV) voltage (kV)
\1\
------------------------------------------------------------------------
46.1 to 72.5........................................... 72.5
72.6 to 121............................................ 121
138 to 145............................................. 145
161 to 169............................................. 169
230 to 242............................................. 242
345 to 362............................................. 362
500 to 550............................................. 550
765 to 800............................................. 800
------------------------------------------------------------------------
Source: 29 CFR 1910.269 Table R-6 and Appendix B to that section.
Note 1: This is the ``voltage'' of the power line for the purposes of
the final rule.
Unless the power lines are deenergized and grounded, encroachment/
electrocution prevention measures have to be implemented to prevent the
crane from breaching a minimum clearance distance and protect against
electrocution. The employer is allowed to choose among several minimum
clearance distance options.
For example, for lines up to 350kV, the minimum clearance distance
options would be: (1) 20 feet; or (2) the distance specified in Table A
of Sec. 1926.1408 for the line's voltage (Table A is the ``10-foot
rule''; see discussion of Table A in discussion of Sec. 1926.1408); or
(3) a distance closer than what is specified in Table A.
However, there are limitations to the availability of some of these
options, and the number of mandatory encroachment prevention (and
other) measures increases when using a clearance distance closer than
Table A.
A commenter stated that use of the term ``employer'' was confusing
when there are multiple employers on a given construction site, and
raised the issue of whether each employer was responsible for employing
its own dedicated spotter and its own set of barricades and similar
safety measures. (ID-0143.1.)
In general, except where otherwise specified in this standard, the
requirements of this standard apply to employers whose employees are
exposed to hazards addressed by this standard, and also to other
employers in certain situations as explained in OSHA's multi-employer
policy (see OSHA CPL 02-00-124, Multi-Employer Citation Policy, Dec.
10, 1999). For example, with respect to situations in which barricades,
a dedicated spotter, or other measures are required under Sec. Sec.
1926.1407-1926.1411, each such employer is responsible for ensuring
that the required measures are in place. However, that does not mean
that each employer is required to install or provide duplicate sets of
those measures. In multiple employer worksites, one employer may rely
on measures provided by another employer as long as those measures meet
the requirements of the standard.
Several commenters asked that OSHA specify in the standard that
utility owner/operators may charge fees for the services they are
required to perform under the standard. (ID-0155.1; -0203.1.) For
example, where the employer uses Sec. 1926.1408(a)(2)(iii)'s Option
(3) for setting the clearance distance (i.e., the clearance distance
under Table A), under Sec. 1926.1408(c), the utility owner/operator
must provide requested voltage information within two working days of
the request.
The standard does not address the issue of fees; the Agency
determined that fees will generally be addressed as a contractual
matter between the parties involved.\23\
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\23\ Note that in the Regulatory Flexibility Analysis, OSHA has
assumed that the cost of providing this information would be passed
on to the employer requesting the information, not the utility
owner/operator. See section V.B of this preamble.
---------------------------------------------------------------------------
Section 1926.1407 Power Line Safety (Up to 350 kV)--Assembly and
Disassembly
The requirements in Sec. 1926.1407 address the hazards of
assembling and disassembling equipment near power lines up to 350 kV.
The requirements in Sec. 1926.1407 are similar in most respects to the
requirements in Sec. 1926.1408, which address operations of equipment
near power lines.
One commenter suggested that OSHA amend Sec. 1926.1407 to include
cranes used to assist the assembly and disassembly of other cranes.
(ID-0131.) As OSHA noted in the preamble to the proposed rule, when an
assist crane is used during the assembly or disassembly of another
crane/derrick, the use of the assist crane, with respect to power line
safety, would be considered ``operations'' and therefore covered by
Sec. 1926.1408 (or, for power lines over 350 kV, Sec. 1926.1409).
This is because the assist crane has already been assembled and is
being used for a crane operation. Therefore, use of the assist crane
must comply with Sec. 1926.1408 during the assembly/disassembly
process rather than with Sec. 1926.1407.
In contrast, a crane that is not yet fully assembled is often used
to complete its own assembly. For example, a crane is often used to
load its own counterweights. Similarly, it may unload its
counterweights in its own disassembly process. Such activities would be
covered under Sec. 1926.1407 since it is being assembled/disassembled.
Therefore, the provision is promulgated in the final rule without
change.
Paragraph (a)
Under this paragraph, before beginning assembly or disassembly, the
employer must determine if any part of the crane, load or load line
(including rigging and lifting accessories) could get, in the direction
or area of assembly, closer than 20 feet to a power line.
As stated in the preamble of the proposed rule, the phrase ``in the
direction or area of assembly/disassembly'' was included to address the
fact that, in some cases, the assembly or disassembly of a crane takes
place not just in an ``area,'' that is, a fixed portion of the work
site, but also in a ``direction.'' For example, when
[[Page 47946]]
disassembling a crane, the disassembly process takes place in an area
that includes the area under and around the boom's path as it is
lowered to the ground (in most, but not all cases, the boom is lowered
to the ground for the disassembly process). Under this provision, the
employer must assess the proximity that the boom will be in to the
power line in its path of travel to (and on) the ground.
Two commenters expressed confusion about the meaning of the phrase
``in the direction or area of assembly/disassembly.'' (ID-0122; -
0178.1.) C-DAC's intent in including this phrase was to ensure that
employers make the initial 20-foot clearance assessment based on not
only the area which the crane equipment occupies at the beginning of
the assembly/disassembly process, but also with respect to other areas
radiating from the initial area, both horizontally and vertically, that
will be occupied as the equipment components are added, removed,
raised, and lowered during the assembly/disassembly process. For
example, when assembling a lattice boom crane, the ``area'' involved
will expand as boom sections are added.\24\ This area expands in the
``direction'' in which the boom sections are added. The power line
assessment has to be made for the portion of the site that will be
involved as these boom sections are added.
---------------------------------------------------------------------------
\24\ This also occurs with telescopic extensible boom cranes
when a ``dead man section'' is added to the boom.
---------------------------------------------------------------------------
As stated in the preamble to the proposed rule, ``direction''
includes the direction that, for example, the boom will move as it
rises into the air after the boom has been assembled on the ground. For
example, the boom, when fully assembled on the ground, may be more than
20 feet from a power line. However, when raising it from the ground, it
may get closer than 20 feet. Accordingly, under this language, the
``direction'' that the boom will travel as it is raised must also be
evaluated for proximity to power lines.
Another example is the assembly of a tower crane. As tower sections
are added, the assembly process may reach a point where components are
closer to power lines than when the process began. That ``direction''
of assembly upwards must also be evaluated.
If an employer determines that the 20 foot ``trigger''
determination is positive, then the employer is required to take
additional steps. Specifically, the employer must meet the requirements
under either Option (1), Option (2), or Option (3) of Sec.
1926.1407(a).\25\ Some commenters were concerned that the three
compliance options in Sec. 1926.1407(a) could be construed as a
prioritization of compliance preferences, e.g., a preference for
deenergization over the other options. (ID-0203.1; -0214.1.) In
response, OSHA wishes to clarify that the three options are in no
particular order. In the Agency's view they represent three adequately
protective compliance methods. The standard offers employers the
flexibility to select the method most suitable for each specific work
situation.
---------------------------------------------------------------------------
\25\ If no part of the crane, load or load line could come
closer than 20 feet to a power line, the employer is not required to
take any further action under this section. However, the employer
may encounter a situation where it needs to get closer than
anticipated to the power lines during the assembly/disassembly
process. In such a case the employer is required to go back and
conduct a new 20 foot ``trigger assessment.''
---------------------------------------------------------------------------
Paragraph (a)(1) Option (1)
An employer choosing Option (1) of this section will protect
against electrocution by having the power lines deenergized and visibly
grounded. Where the employer elects this option, it will not have to
implement any of the encroachment/electrocution prevention measures
listed in Sec. 1926.1407(b). This option helps to minimize the
electrical hazards posed by power lines.\26\
---------------------------------------------------------------------------
\26\ Grounding the lines helps minimize the electrical hazard
from possible reenergizing of the lines; however, some voltage will
still appear on the line until the circuit protective devices open
the circuit. In addition, under certain conditions, the circuit
protective devices will not open the line, and the voltage will
remain.
---------------------------------------------------------------------------
A number of commenters confirmed the Committee's determination that
because of the time and cost considerations in arranging for the
utility owner/operator \27\ to deenergize and ground the line,
deenergizing and grounding has not been routinely done. (ID-0155; -
0203; see the discussion in the proposed rule preamble of deenergizing
and grounding with regard to proposed Sec. 1926.1408(a)(2)(i), 73 FR
59755, Oct. 9, 2008.)
---------------------------------------------------------------------------
\27\ OSHA notes that the phrase ``utility owner/operator''
reflects scenarios where utilities may not be operated by an owner
but by some entity other than the owner. Therefore wherever the
phrase ``utility owner/operator'' is used in the standard or in the
preamble it is meant to apply to utility owners or utility
operators. The final rule also uses the word ``utility'' in its
broadest sense. It includes traditional utilities as well as other
entities (such as steel or paper companies) that own or operate the
power lines.
---------------------------------------------------------------------------
Therefore, OSHA continues to conclude that providing other safe and
practical options in the final rule will help to reduce unsafe
practices in the industry. Those other options (Options (2) and (3) in
Sec. 1926.1407(a)) combined with Sec. 1926.1407(b) are designed to be
effective protection against the hazards of electrocution.
One commenter requested that OSHA provide guidance on whether
written confirmation of deenergization and grounding from the utility
owner/operator will be required. (ID-0214.1.) He further recommended
that the requested guidance should be set forth in the regulatory text
rather than in the preamble if OSHA expects employers to obtain a
written confirmation. OSHA did not determine that written confirmation
is necessary. As long as the utility owner/operator confirms that the
line is deenergized and it is visibly grounded, employee safety is
assured. Thus, the final rule does not require written confirmation
that the line is deenergized.
For a discussion of comments related to the requirement for visible
grounding, see the section later in this preamble addressing Sec.
1926.1408(a)(2)(i).
One commenter suggested that in some situations deenergizing and
grounding could place the utility owner/operator in conflict with other
Federal and State regulatory requirements. (ID-0203.1.) The commenter
did not provide information for OSHA to consider regarding any specific
conflicts, and OSHA has not identified any such conflicts. Moreover, in
the event that such a conflict does arise, the employer could choose,
as an alternative to deenergizing, Options (2) or (3) as described
below.
This paragraph is being adopted without change from the proposal.
Paragraph (a)(2) Option (2)
Under Option (2) (Sec. 1926.1407(a)(2)), the employer is required
to maintain a minimum clearance distance of 20 feet. To help ensure
that this distance is not breached, the employer has to implement the
encroachment prevention measures in Sec. 1926.1407(b). Under this
option, no part of the equipment, load or load line, including rigging
and lifting accessories, is permitted closer than 20 feet to the power
line.
Employers using this option will have to stay further away from the
power line than had been required under subpart N's 10-foot rule
(employers wanting to use the 10-foot rule would have to use Option
(3), discussed below).\28\ However, an advantage of this option to many
employers is that they do not have to determine the voltage of the
power line; they only have to determine that the line voltage is no
more than 350 kV.
---------------------------------------------------------------------------
\28\ As discussed above, the 10-foot rule requires varying
clearance distances increasing with voltage with clearance distances
that begin at 10 feet.
---------------------------------------------------------------------------
Under the old subpart N formula, an employee was required at most
to
[[Page 47947]]
maintain a 20-foot distance away from a power line. Under the new
option, employees are required to stay at least 20 feet away from the
power line, so the Committee determined that there would be no
diminution of safety under this new option. In fact, in the Committee's
experience, most power lines encountered by most employers have
voltages that, under the current subpart N formula, require a minimum
clearance distance of 10 feet. Therefore, use of this option will
result in a higher margin of safety. Employers who do not need to get
closer than 20 feet to assemble/disassemble the crane could use this
option and would be saved the step of obtaining the line voltage.
As noted above, in addition to maintaining a minimum clearance
distance of 20 feet, employers using this option are required to
implement the encroachment prevention and other measures specified in
Sec. 1926.1407(b).
Paragraph (a)(3) Option (3)
Under Option (3) (Sec. 1926.1407(a)(3)), the employer is required
to maintain a minimum clearance distance in accordance with Table A of
Sec. 1926.1408. Under Table A, depending on the voltage of the power
line, the minimum clearance distance ranges from 10 feet to 20 feet for
lines up to 350 kV. Under this option the employer is required to
determine the line's voltage.
As a practical matter, in the Committee's experience, the power
lines most typically encountered by most employers would require a
minimum clearance distance of 10 feet under Table A. As a result,
employers can assemble/disassemble equipment closer to power lines
under this option than under Option (2).
Table A is based upon the same formula that was used in subpart N
(the 10-foot rule) and is similar to Table 1 in ASME B30.5-2004. Unlike
subpart N, which had required employers to calculate the minimum
clearance distance from a formula, Table A sets forth specified
clearance distances in a readily understood table and requires no
calculations. In addition to maintaining the minimum clearance distance
specified in the Table, employers using this option are required to
implement the encroachment prevention and other measures specified in
proposed Sec. 1926.1407(b).
Several commenters verified C-DAC's determination that obtaining
voltage information in practice can often be difficult and time-
consuming. (ID-0118; -0143.1; -0146.1; -0155.1.) OSHA determines that
providing a mechanism under Sec. 1926.1407(a)(2) (``Option (2)'') to
proceed with construction operations without having to obtain voltage
information from utilities provides employers with a viable alternative
to obtaining voltage information without compromising the safety of
workers. This section of the final rule provides a mechanism by which
employers can, using Table A, perform work with clearance distances of
less than 20 feet. It is promulgated as proposed.\29\
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\29\ The proposed regulatory text for Sec. 1926.1407(a)(3)(i)
used the phrase ``minimum clearance distance'' while that for Sec.
1926.1407(a)(3)(ii) used ``minimum approach distance.'' For
consistency, OSHA has, in Sec. 1926.1407(a)(3)(ii), changed the
phrase ``minimum approach distance'' to ``minimum clearance
distance.'' Provisions in Sec. 1910.269 and proposed subpart V of
29 CFR 1926 use the phrase ``minimum approach distance.'' OSHA
believes that employers who are covered by those standards are
familiar with that term. In contrast, the Agency believes that
employers that do not perform electric power work will better
understand the term ``minimum clearance distances.'' OSHA considers
the terms ``approach distance'' and ``clearance distance'' to be
interchangeable; no substantive distinctions are intended.
---------------------------------------------------------------------------
Paragraph (b) Preventing Eencroachment/Electrocution
Once an employer has determined that some part of the crane, load
or load line could come within the trigger distance of 20 feet of a
power line (see Sec. 1926.1407(a)), if it chooses either Option (2) or
(3) of Sec. 1926.1407(a) it is required to implement encroachment
prevention measures to help ensure that the applicable minimum
clearance distance (20 feet under Option (2) or the Table A distance
under Option (3) is not breached.\30\
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\30\ Alternatively, under Option (1), the employer could have
the lines deenergized and grounded. If Option (1) were selected, no
further action under this section would be required.
---------------------------------------------------------------------------
Most of the measures in this paragraph are designed to help the
employer maintain the appropriate clearance distance and thereby
prevent electrical contact while in the process of assembling or
disassembling equipment. One of the measures is designed to prevent
electrocution in the event of electrical contact.
Paragraph (b)(1)
Under paragraph (b)(1) of this section, the employer is required to
conduct a planning meeting with the Assembly/Disassembly Director \31\
(A/D Director), operator, assembly/disassembly crew and other workers
who will be in the assembly/disassembly area (including the area of the
load). This planning meeting must include reviewing the location of the
power line(s) and the steps that will be implemented to prevent
encroachment and electrocution.
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\31\ As explained in the preamble accompanying Sec. 1926.1404,
the term ``assembly/disassembly director'' replaces the proposed
term ``assembly/disassembly supervisor.''
---------------------------------------------------------------------------
In the planning meeting, the employer is required to select a
protective measure from paragraph (b)(3) of this section (see
discussion below) and review all the measures that will be used to
comply with this section.
The purpose of the meeting requirement is to ensure that the
operator and other workers who will be in the area understand these
measures and how they will be implemented. That understanding is
important to their successful implementation. Because of the critical
nature of these measures, and the seriousness of the consequences to
the safety of the employees if they are not implemented correctly, the
Committee concluded that it is necessary for there to be a structured
process by which the employer communicates this information.
As noted below, a planning meeting to discuss implementing
encroachment prevention measures is also required under Sec.
1926.1408(b)(1). Refer to the preamble section related to that
provision for a discussion about public comments received regarding
responsibilities for ensuring that such a meeting takes place. That
discussion is equally relevant to this section. With the exception of
the use of the term ``director'' instead of ``supervisor,'' as
explained above, this section is promulgated as proposed.
Paragraph (b)(2)
Paragraph (b)(2) of this section requires that where tag lines are
used they must be nonconductive. This provision uses two terms that are
defined in Sec. 1926.1401. ``Tag lines'' is defined as ``a rope
(usually fiber) attached to a lifted load for purposes of controlling
load spinning and pendular motions or used to stabilize a bucket or
magnet during material handling operations.'' Thus, one end of a tag
line is attached to the load and the other end is held by an employee
who controls the load's motion by exerting force on the line.
If the equipment or load were to make electrical contact with a
power line while an employee was holding a tag line that was able to
conduct electricity, the employee could be electrocuted. The
requirement that the tag line be nonconductive is designed to protect
against such an event. Section 1926.1401 defines ``nonconductive'' as
meaning that, ``because of the nature and conditions of the materials
used, and the conditions of use (including environmental conditions and
condition of the material), the object in question has the property of
not becoming
[[Page 47948]]
energized (that is, it has high dielectric properties offering a high
resistance to the passage of current under the conditions of use).''
This definition recognizes that it is not only the inherent
property of the tag line material that results in it being
nonconductive but also the conditions of use. For example, in some
cases, if an otherwise nonconductive material were to become wet and
therefore able to conduct electricity, it would no longer qualify as
nonconductive under this paragraph.
One commenter requested that OSHA specify test procedures to assist
employers in making the determination of whether a tag line is
nonconductive. (ID-0178.1.) C-DAC considered the utility of setting
specifications for materials required to be nonconductive but
determined that it would be impractical. American Society for Testing
and Materials (ASTM) Standard Specification for Unused Polypropylene
Rope With Special Electrical Properties, ASTM F1701-05 contains
specifications and test methods for live-line rope used in electric
power work. These ropes are used to insulate power line workers from
energized power lines. Tag lines meeting this standard are acceptable
under the final rule. However, to meet the requirement for
``nonconductive'' tag lines, they need not meet this standard, which
requires a degree of insulation beyond that intended by the final rule.
In addition, several other OSHA general industry and construction
standards call for nonconductive materials, including Sec.
1910.268(n)(13)(ii) (requiring nonconductive measuring devices to
measure clearance distances from overhead power lines), Sec. Sec.
1910.269(l)(6)(i) and 1910.333(c)(8) (requiring metal articles worn by
employees to be rendered nonconductive), and Sec. 1926.955(a)(8)
(requiring nonconductive tag lines). In general these and other
standards that call for nonconductive materials require the use of
insulating material that does not have a voltage rating; thus, there is
no need to specify a test method. In fact, setting test criteria for
these materials would produce a voltage rating and render them
insulating rather than nonconductive. (Because nonconductive materials
have no voltage rating, there is still a risk of injury from electric
shock should contact occur. However, these materials reduce that risk
substantially.) In practice, under dry conditions nonmetallic fiber
rope typically satisfies the definition for nonconductive.\32\ The
Agency concludes that this guidance is sufficient to help employers
determine whether their tag lines meet the definition and has
therefore, declined to specify test procedures in the final rule. The
provision is promulgated as proposed, without change.
---------------------------------------------------------------------------
\32\ Wet, muddy, or high humidity conditions can cause such rope
to stop being nonconductive. Similarly, the presence of metal or
other conductive fibers or conductive sheaths or reinforcement would
render the tag line conductive.
---------------------------------------------------------------------------
Paragraph (b)(3)
Under this paragraph the employer is required to implement one of
five listed encroachment prevention measures (Sec. 1926.1407(b)(3)(i)
through (v)). The Committee concluded that the use of any one of these
measures, in combination with the required measures listed elsewhere in
Sec. 1926.1407(b), would be feasible and effective in protecting
against encroachment. Specifically, the employer is required to choose
either: (i) The use of a dedicated spotter; (ii) a proximity alarm;
(iii) a device that automatically warns the operator when to stop
(i.e., a range control warning device); (iv) a device that
automatically limits the range of movement of the equipment; or (v) an
elevated: warning line, barricade, or line of signs, in view of the
operator, equipped with flags or similar high-visibility markings.
Providing the ability to choose among these options gives the employer
flexibility so that it can pick one that is well suited and efficient
in the circumstances.
A definition of ``dedicated spotter (power lines)'' is included in
Sec. 1926.1401, Definitions. A dedicated spotter must meet the signal
person qualification requirements of Sec. 1926.1428 and his/her sole
responsibility must be to watch the separation between the power line
and the equipment, load line, and load, and to ensure through
communication with the operator that the applicable minimum distance is
not breached.
When the employer uses a dedicated spotter to prevent encroachment
under this section, that person has the critical responsibility of
ensuring, through communication with the operator, that the equipment
maintains a specified minimum clearance distance from a power line.
This definition makes clear that the dedicated spotter cannot have any
other responsibilities.\33\ The dedicated spotter must have the
qualifications required of a signal person under Sec. 1926.1428,
discussed below. Those qualifications will ensure that the signal
person can communicate effectively with the operator. They also ensure
that the signal person is knowledgeable about crane dynamics and
therefore is able to recognize situations in which the minimum
clearance distance may inadvertently be breached if, for example, the
load is stopped quickly while it is being moved near a power line.
---------------------------------------------------------------------------
\33\ The preamble language of the proposed rule stated that
``the dedicated spotter cannot have any other responsibilities that
detract him/her from this task.'' (73 FR 59752, Oct. 9, 2008.) The
phrase ``that detract him/her from this task'' incorrectly implied
that a dedicated spotter could have other tasks provided those other
tasks did not distract the dedicated spotter from his/her task of
maintaining the required separation between the power line and the
equipment, the load, and the load line. This implication was
incorrect. As stated in the definition section, the dedicated
spotter's duty to maintain the required separation from the power
line must be his/her ``sole responsibility.''
---------------------------------------------------------------------------
One commenter requested that OSHA include a clarification that the
dedicated spotter can also be the signal person. (ID-0292.1.) As noted
in the definition of ``dedicated spotter'' quoted above, although the
dedicated spotter must be a qualified signal person under the
requirements of Sec. 1926.1428, that definition also mandates that the
sole responsibility of the dedicated spotter be to ensure the required
separation between the power line and the equipment, the load line, and
the load (including loading and lifting accessories). Thus, in
situations where the equipment operator requires the assistance of a
signal person to provide signals related to maneuvering the equipment
or the load other than maintaining the required power line clearance
distance, a different person must serve as signal person.\34\
---------------------------------------------------------------------------
\34\ If a dedicated spotter also served as a signal person for
purposes other than maintaining the clearance distance, the
dedicated spotter would be vulnerable to a typical cause of power
line contact--focusing on something else and forgetting about, or
being distracted from, maintaining the clearance distance.
---------------------------------------------------------------------------
The devices listed in Sec. Sec. 1926.1407(b)(3)(ii) and (iii) are
also defined in Sec. 1926.1401. A ``proximity alarm,'' is a device
that warns of proximity to a power line and must be listed, labeled, or
accepted by a Nationally Recognized Testing Laboratory in accordance
with Sec. 1910.7.\35\ A Nationally Recognized Testing Laboratory is an
organization that has been recognized by OSHA pursuant to Sec. 1910.7
as competent to evaluate equipment for conformance to appropriate test
standards for that type of equipment. Thus, approval of a
[[Page 47949]]
proximity alarm by a nationally recognized testing laboratory provides
assurance that the device will work as intended. (For a discussion of
public comments submitted relating to proximity alarms, see discussion
of Sec. 1926.1408(b)(4).) A ``range control warning device,'' is
defined in Sec. 1926.1401 and is a device that can be set by an
equipment operator to warn that the boom or jib tip is at a plane or
multiple planes.
---------------------------------------------------------------------------
\35\ The C-DAC version of this provision defined proximity alarm
as: ``a device that provides a warning of proximity to a power line
that has been approved by a Nationally Recognized Testing
Laboratory.'' OSHA has modified the provision to conform its
language to that used in Sec. 1910.7, the OSHA rule governing
nationally recognized testing laboratories, and to explicitly refer
to Sec. 1910.7 to make clear that the listing, labeling, or
acceptance of a device under this rule must be accord with Sec.
1910.7.
---------------------------------------------------------------------------
OSHA realized that some of the devices listed in Sec.
1926.1407(b)(3) would not be operational or effective against
electrocution during certain phases of the assembly or disassembly
process of certain types of cranes. For example, for lattice boom
cranes, proximity alarm devices may not be able to be used when the
boom is not yet fully assembled; at that point the proximity alarm
typically cannot be connected and functioning. Therefore, during
certain phases of assembly/disassembly, one of the other options would
need to be used (such as a dedicated spotter) to provide the needed
protection.
However, the proposed regulatory text would have permitted an
employer to select an option under paragraph (b)(3) of this section
irrespective of whether it would be effective under the circumstances.
To address this concern, OSHA requested public comment on whether to
modify proposed Sec. 1926.1407(b)(3) to preclude the employer from
selecting an option that, in the employer's situation, would be
ineffective, such as by revising the provision to read:
(3) At least one of the additional measures listed in this
paragraph must be in place. The measure selected from this list must
be effective in preventing encroachment. The additional measures
are: * * *.
Two of four commenters on this issue supported amending the
language of this provision as described above. (ID-0067; -0118.) The
two commenters who disagreed with requiring that the chosen method be
effective in preventing encroachment thought that this provision would
prove problematic for employers; they favored the original wording from
the Committee that did not specifically require efficacy. (ID-0205.1; -
0213.1.) These latter two commenters did not present any evidence to
counter OSHA's concern that some of the listed encroachment prevention
measures may not be fully effective under all circumstances. OSHA
concludes that prudence dictates amending this provision to require
that the selected measure be effective in preventing encroachment; the
final rule therefore reflects the change described above.
In situations where an employer chooses the option of using a
dedicated spotter to prevent encroachment under Sec. 1926.1407(b)(3),
the employer is required to meet the requirements for spotters in Sec.
1926.1407(b)(3)(i). As specified in paragraph (b)(3)(i)(A) of this
section, the spotter must be equipped with a visual aid to assist in
identifying the minimum clearance distance. The Committee concluded
that a visual aid is needed for the spotter because of the difficulty
in visualizing the minimum clearance distance boundary in the air.
Under paragraphs (b)(3)(i)(B)-(D) of this section, the spotter must
be positioned so that he/she can effectively gauge the clearance
distance from the power line; the spotter, where necessary, must use
equipment that enables him/her to communicate directly with the
equipment operator; and the spotter must give timely information to the
operator so that the required clearance distance can be maintained. C-
DAC determined that each criterion is needed for the spotter to be able
to be effective.
One commenter on this provision asked whether an airhorn is
appropriate communication equipment for purposes of paragraph (C). (ID-
0120.) OSHA determines that an airhorn would not enable the dedicated
spotter to communicate with the operator as effectively as a radio,
telephone, or other electronic communication device, and, in any event,
might not be an effective means of communication on a noisy
construction site; therefore, OSHA does not consider use of an airhorn
to constitute compliance with paragraph (C).\36\
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\36\ The cross-reference to Sec. 1926.1420 originally included
in this provision as proposed was deleted in the final rule for
consistency with the parallel provisions for dedicated spotters in
Sec. Sec. 1926.1408(b)(4)(ii)(C) and 1926.1410(d)(2)(iii). This is
a ministerial change not intended to have any substantive
enforcement implications.
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Paragraph (c) Assembly/Disassembly Below Power Lines Prohibited
This paragraph precludes employers from assembling or disassembling
cranes/derricks beneath energized power lines. The Agency agreed with
the Committee's conclusion that assembly/disassembly below energized
power lines presents an extreme risk and needs to be prohibited. The
assembly/disassembly process necessarily involves moving and hoisting
parts of the equipment into place. If some of this work takes place
beneath a power line, the risk that a part, load, load line, or other
equipment would make electrical contact is very high. Also, in both
assembly and disassembly, maneuvering an assembled crane out from under
the power lines, or maneuvering a crane that is about to be
disassembled under them, itself poses a high risk of such contact.
C-DAC's agreement on this provision indicates a determination by
the Committee that, in almost all cases, the employer can plan the
assembly/disassembly so that there will be no need to be beneath power
lines. The Committee and OSHA also concluded that, in the very few
instances where this is not possible, in light of the extreme risk
involved, it is essential that the lines be deenergized and visibly
grounded. No comments were received on this provision; it is
promulgated as proposed.
Paragraph (d) Assembly/Disassembly Closer Than Table A Clearance
Prohibited
Assembly and disassembly of cranes/derricks closer than the minimum
clearance distance in proposed Table A of Sec. 1926.1408 to an
energized power line is prohibited under this paragraph. If assembly or
disassembly needs to take place closer than that distance, the employer
is required to have the line deenergized and visibly grounded. The
rationale for this provision is similar to that discussed above for
assembly/disassembly beneath power lines (that rationale is set forth
in the discussion in the proposed rule preamble of proposed Sec.
1926.1407(c), 73 FR 59753, Oct. 9, 2008). Engaging in assembly/
disassembly activity closer to an energized power line than the Table A
distance was considered by the Committee to be too hazardous to be
permitted under any circumstances.
This reflects certain inherent characteristics of the assembly/
disassembly process that preclude the employer from being able to
reliably maintain clearance distances closer than Table A of Sec.
1926.1408. For example, when disassembling a lattice boom, pins that
hold boom sections together are removed. Even when done properly, this
can release stored kinetic energy and cause the boom section being
removed, as well as the remaining sections, to move. It is too
difficult to estimate the amount of such potential movement with the
precision that would be necessary when working closer than the Table A
distances.
Another example is when assembling a boom, an error in the assembly
process may similarly cause unanticipated movement. Using clearances
closer than those in Table A would not allow sufficient room in light
of the difficulty
[[Page 47950]]
of predicting the amount of such movement.\37\
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\37\ In this respect this provision differs from Sec.
1926.1410. As discussed below, Sec. 1926.1410 allows use of minimum
clearance distances closer than Table A in some circumstances for
crane ``operations.'' In contrast, Sec. 1926.1407(d) reflects a
determination by the Committee that there are no circumstances for
``assembly/disassembly'' when it would be safe for any part of the
crane, load or load line (including rigging and lifting accessories)
to get closer than the Table A minimum clearance distance.
---------------------------------------------------------------------------
This paragraph is being adopted as proposed.
Paragraph (e) Voltage Information
This section operates in conjunction with Sec. 1926.1407(a)(3).
Under Sec. 1926.1407(a)(3), employers who elect to use Option (3) of
Sec. 1926.1407(a) must determine the line's voltage. Under Sec.
1926.1407(e), where the employer asks the utility owner/operator for
that voltage information, the utility owner/operator of the line is
required to provide the voltage information within two working days of
the request.\38\
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\38\ One commenter suggested that utility owners/operators be
required to label all power lines with voltage information. (ID-
0143.1.) OSHA rejected this suggestion because it believes the cost
of labeling every overhead power line in the country would be
prohibitive.
---------------------------------------------------------------------------
This reflects a conclusion of the Committee that, in the absence of
such a time limitation on the utility owner/operator, in many instances
Option (3) Sec. 1926.1407(b) would not be useful because the employer
would not be able to get the voltage information in sufficient time to
be able to use it. Many employers will rely on the utility owner/
operator to get this information. The Committee was concerned that an
extended delay in getting it would result in employers, to some extent,
doing the work anyway without the information. Therefore, for Option
(3) Sec. 1926.1407(b) to be viable, the Committee concluded that a
reasonable time limitation for the utility owner/operator to respond
was needed.\39\
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\39\ As noted in the introduction, C-DAC included two members
from the electric utility industry.
---------------------------------------------------------------------------
Some utility owner/operators asserted that OSHA cannot require them
to provide voltage information because OSHA does not have authority to
impose such requirements on an electric utility that does not have
employees at the construction site in question. (ID-0166.1; -0203.1; -
0226.1.)
OSHA's authority to require that electric utilities disclose
voltage information derives from secs. 6(b) and 8(g)(2) of the Act.
While sec. 6(b) generally authorizes the Secretary to promulgate and
enforce occupational safety and health standards, sec. 6(b)(7)
specifically permits the Secretary to ``prescribe the use of labels or
other appropriate forms of warning as are necessary to insure that
employees are apprised of all hazards to which they are exposed * * *
and proper conditions and precautions of safe use or exposure.'' 29
U.S.C. 655(b)(7). Thus, OSHA may include information-gathering
requirements among the provisions of a standard. Section 1926.1407(e)
falls within the scope of sec. 6(b)(7), because voltage information is
necessary to the determination of safe clearance distances for
employees who work near power lines.
The Agency previously exercised its authority under sec. 6(b)(7) of
the Act to promulgate the Hazard Communication Standard, which requires
that chemical manufacturers and importers provide information for the
benefit of downstream employees (see Sec. 1910.1200). As a rationale
for these provisions, OSHA explained that chemical manufacturers and
importers are in the best position to develop, disseminate, or obtain
information about their products (see 48 FR 53280, 53322, Nov. 25,
1983). Similarly, in an early case discussing sec. 6(b)(7), the Fifth
Circuit found that ``[t]he ability of downstream employers to protect
their own employees is also an appropriate consideration in determining
where the duty to warn should lie.'' American Petroleum Institute v.
OSHA, 581 F.2d 493, 509 (5th Cir. 1978).
Section 8(g)(2) of the Act affords the Secretary additional
authority for Sec. 1926.1407(e). According to this section, the
Secretary may ``prescribe such rules and regulations as he may deem
necessary to carry out responsibilities under the Act.'' The enumerated
purposes of the Act indicate that the Secretary's responsibilities
include:
-- Setting mandatory occupational safety and health standards
applicable to businesses affecting interstate commerce (29 U.S.C.
651(b)(3));
--Developing innovative methods, techniques, and approaches for
dealing with occupational safety and health problems (29 U.S.C.
651(b)(5)); and
--Providing for appropriate reporting procedures with respect to
occupational safety and health which procedures will help achieve the
objectives of this Act and accurately describe the nature of the
occupational safety and health problem (29 U.S.C. 651(b)(12)).
An electric utility representative asserted that, because employees
of electric utilities are not likely to perform work under the
circumstances that the standard contemplates, sec. 4(a) prevents OSHA
from including requirements that target electric utilities. OSHA
disagrees. Section 4(a) broadly provides that the OSH Act applies
``with respect to employment performed in a workplace,'' 29 U.S.C.
653(a), and does not bar the statute's application to any class of
employers. Section 4(a) contains no language to suggest that the Act's
application depends on the relationship between the employees at risk
and the employer with the power to reduce their risk.
Additionally, the commenter stated that Sec. 1910.12(a) precludes
OSHA from regulating electric utilities, because employees of electric
utilities will not be present at construction worksites and therefore
will not be ``engaged in construction.'' \40\ The commenter cites Reich
v. Simpson, Gumpertz & Heger, Inc., 3 F.3d 1, 4-5 (1st Cir. 1993), in
which the First Circuit relied on the second sentence of Sec.
1910.12(a) as a basis for vacating citations that OSHA had issued to an
engineering firm under the multi-employer worksite doctrine.
---------------------------------------------------------------------------
\40\ It should be noted that utility employees will be at these
worksites from time to time to perform work on the power lines.
---------------------------------------------------------------------------
Simpson, Gumpertz is inapposite; the multi-employer worksite
doctrine has no bearing on the validity of Sec. 1926.1407(e), which
explicitly holds electric utilities responsible for the distribution of
voltage information. A more relevant case is Sec'y of Labor v. Trinity
Indus., Inc., 504 F.3d 397 (3d Cir. 2007), in which the Third Circuit
upheld information disclosure requirements that are analogous to those
in Sec. 1926.1407(e). In Trinity, the Third Circuit affirmed OSHA's
authority for provisions in the Asbestos Standard for the Construction
Industry that require building owners to communicate the presence of
asbestos or presumed asbestos-containing materials to certain
prospective employers. Id. at 402. The court distinguished OSHA's
authority to require that specific employers disclose information from
the Agency's authority under the multi-employer doctrine to cite a
general contractor for violations committed by a subcontractor:
Unlike the regulations at issue in Summit Contractors, Inc., the
regulation at issue here specifically applies to building owners * *
*. We are not convinced that the Secretary is powerless to regulate
in this field, especially given the findings she has made regarding
the importance of building owners in the discovery and communication
of asbestos hazards.
Id. As Trinity confirms, the multi-employer worksite doctrine does not
govern the validity of regulatory provisions that require specific
employers to provide information. As a
[[Page 47951]]
result, the interpretation that the multi-employer case law has given
to Sec. 1910.12(a) is not controlling in relation to Sec.
1926.1407(e). Moreover, the requirement that electric utilities provide
voltage information is not in conflict with the plain language of Sec.
1910.12(a), which states:
The standards prescribed in part 1926 of this chapter are
adopted as occupational safety and health standards under section 6
of the Act and shall apply, according to the provisions thereof, to
every employment and place of employment of every employee engaged
in construction work. Each employer shall protect the employment and
places of employment of each of his employees engaged in
construction work by complying with the appropriate standards
prescribed in this paragraph.
As the Agency noted in the proposal, the first sentence in Sec.
1910.12(a) makes the construction standards applicable to every
employment and to every ``place of employment'' of every construction
employee. The second sentence of Sec. 1910.12(a), by providing that
each employer must protect the employment and the places of employment
of each of his employees, does not negate the broad reach of the first
sentence. The Secretary did not include language to indicate that an
employer has obligations only toward his employees and the worksites of
his employees.
Furthermore, the history of Sec. 1910.12(a) reveals that the
Secretary did not intend for it to limit her authority. Indeed, Sec.
1910.12(a) is located within a subpart entitled ``Adoption and
Extension of Federal Standards,'' which the Secretary created to extend
her jurisdiction through the adoption of the Construction Safety Act's
standards. Sec. 1910.11(a), subpart B. The opening paragraph of
subpart B states that the subpart's provisions ``adopt and extend the
applicability of established Federal standards * * * with respect to
every employer, employee, and employment covered by the Act.'' Sec.
1910.11(a). Thus, neither the language nor the context of Sec.
1910.12(a) suggest a conflict with the requirement that electric
utilities provide voltage information when employers request it.
The commenter also cites United States v. MYR Group, Inc., in which
the Seventh Circuit held that OSHA could not cite a parent corporation
for the failure of a subsidiary to train its employees. 361 F.3d 364
(7th Cir. 2004). Yet the court distinguished the facts of that case
from circumstances where ``[e]ach employer at the worksite controls a
part of the dangerous activities occurring at the site and is the
logical person to be made responsible for protecting everyone at the
site from the dangers that are within his power to control.'' Id. at
367. Consistent with the Seventh Circuit's reasoning, OSHA has placed
on utilities the responsibility to inform construction workers about
power line voltage, as electric utilities are in the best position to
disseminate voltage information.
In summary, OSHA has firmly-established precedent, under part 1926
and beyond, for requiring that an employer with special knowledge of
occupational hazards provide information to protect workers. Like the
provisions of the Hazard Communication Standard and the Asbestos
Standard for the Construction Industry, Sec. 1926.1407(e) imposes
requirements on employers who possess essential information and are in
the best position to distribute it.
The Committee determined that two business days would be a
reasonable amount of time to allow the utility owners/operator to
respond and be sufficiently short to be useful to the employer
requesting the information. Most of the utility owner/operators who
submitted comments or testimony on this issue did not indicate that a
two-day requirement was unworkable so long as weekends and holidays
were excluded from the two-day calculation.\41\ (ID-0203.1; -0205.1; -
0213.1.) Similarly, although one contractor indicated a desire to be
able to obtain power line voltage information immediately at all times
through Internet services provided by the utility owner/operator (ID-
0118.1), other contractors indicated that a two working day time frame
was manageable from a construction planning standpoint (ID-0205.1; -
0213.1). In light of these comments, OSHA concludes that the proposed
two-day requirement to fulfill voltage information requests was a
reasonable time frame for both contractors and utility owners/
operators.
---------------------------------------------------------------------------
\41\ One electric utility representative at the public hearing
did request, however, that the time period for responding to a
request be changed to four business days. (ID-0342.)
---------------------------------------------------------------------------
In the proposed rule preamble, the Agency noted that the C-DAC
provision read:
Voltage information. Where Option (3) is used, owner/operators
of power lines must provide the requested voltage information within
two working days of the employer's request.
In a different context--determining the timeliness of notices of
contest to OSHA citations--OSHA defines ``working days'' to mean
``Mondays through Fridays but shall not include Saturdays, Sundays, or
Federal holidays.'' 29 CFR 1903.22(c). Since the term is already
defined in an OSHA regulation, the Agency stated that it would apply
the same definition here unless this rule were to specify a different
definition and solicited comments on whether the phrase ``working
days'' should be defined differently for purposes of this rule than it
is in Sec. 1903.22(c). All comments received on this issue indicated
that the Sec. 1903.22(c) definition was appropriate in this context.
(ID-0203.1; -0205.1; -0213.1.) Although OSHA is not specifically
incorporating the Sec. 1903.22 definition by reference, the Agency
intends to rely on that definition for purposes of enforcing Sec.
1926.1407(e). One commenter sought clarification that the two working
day time period would start to run on the first full business day after
the request for information is received. (ID-0215.1.) This is, in fact,
an accurate representation of how this provision will be enforced. If,
for example, the utility receives a request for voltage information on
Monday, it will have until the end of the business day on Wednesday to
provide the necessary information.
Another commenter asked OSHA to provide guidance on whether the
voltage information needed to be provided in written form. (ID-0214.1.)
Given the inherent difficulties of obtaining written information
expeditiously in many construction sites, OSHA concurs with C-DAC's
recommendation not to require that voltage information be provided in
writing.
Paragraph (f) Power Lines Presumed Energized
This paragraph requires that employers always assume that all power
lines are energized unless the utility owner/operator confirms that the
power line has been and continues to be deenergized and visibly
grounded at the worksite. No adverse comments were received on this
provision; it is promulgated as proposed.
Paragraph (g) Posting of Electrocution Warnings
This paragraph requires the posting of electrocution warnings as
follows: one inside the cab in view of the operator and (except for
overhead gantry and tower cranes) at least two on the outside of the
equipment. The Committee concluded and OSHA agrees that these
electrocution warnings are necessary to protect the operator as well as
any employees working in the area around the crane by increasing their
awareness of the hazard. This provision is similar to sec. 5-3.4.5.2(d)
of ASME B30.5-
[[Page 47952]]
2004. No adverse comments were received on this provision; it is
promulgated as proposed.
Section 1926.1408 Power Line Safety (Up to 350 kV)--Operations
As discussed with respect to power line safety in assembly/
disassembly, the standard requires the implementation of a systematic
approach to power line safety for crane/derrick operations. This
approach consists of two basic steps. First, the employer must identify
the work zone, assess it for power lines, and determine how close the
crane could get to them. The employer has the option of doing this
assessment for the area 360 degrees around the crane or for a more
limited, demarcated area. Second, if the assessment shows that the
crane could get closer than a trigger distance--20 feet for lines rated
up to 350 kV--then requirements for additional action are triggered.
Specifically, unless the power lines are deenergized and grounded,
encroachment prevention measures have to be implemented to prevent the
crane from breaching a minimum clearance distance. The employer is
allowed to choose among three minimum clearance distance options. For
example, for lines up to 350 kV, the minimum clearance distance options
are 20 feet, or the distance specified in Table A of this section for
the line's voltage (Table A is the ``10-foot rule''; see discussion of
Table A below), or a distance closer than what is specified in Table A.
However, there are limitations to the availability of some of these
options, and the number of mandatory encroachment prevention (and
other) measures increases when using a clearance distance closer than
Table A.
Paragraph (a) Hazard Assessments and Precautions Inside the Work Zone
Before beginning crane/derrick operations, the employer is required
to determine if power lines would pose a hazard. The first step in this
process is to identify the work zone for which this hazard assessment
will be made (Sec. 1926.1408(a)(1)). The employer has two options for
defining the work zone.
Under the first option (Sec. 1926.1408(a)(1)(i)), the employer is
required to define the work zone by marking boundaries and prohibiting
the operator from operating the equipment past those boundaries.
Examples of how to demarcate the boundaries include using flags or
devices such as a range limit device or range control warning device.
``Range control warning device'' is defined in Sec. 1926.1401 as ``a
device that can be set by an equipment operator to warn that the boom
or jib tip is at a plane or multiple planes.''
OSHA noted in the proposed rule that the term ``range limit
device'' was used in proposed Sec. 1926.1408(a)(1)(i) but that no
definition of this term was provided in proposed Sec. 1926.1401. OSHA
stated that it determined that C-DAC understood a range limit device to
be a device that physically limits how far a crane can boom out and the
angle within which the boom can swing. OSHA requested public comment on
whether a definition of ``range limit device'' should be added to Sec.
1926.1401 and, if so, whether the definition described in the proposed
rule preamble is appropriate (73 FR 59759, Oct. 9, 2008).
Three commenters responded, endorsing the need for a definition and
suggesting language along the lines discussed in the proposed rule.
(ID-0118; -0205.1; -0213.1.) OSHA has added a definition for a ``range
control limit device'' that defines it as ``a device that can be set by
an equipment operator to limit movement of the boom or jib tip to a
plane or multiple planes.''
Employers are not permitted to use existing landmarks to demarcate
work zone boundaries unless they are marked. For example, a line of
trees would be insufficient. Without anything more the trees would not
signal a reminder to the operator of there being a boundary that must
be maintained. However, adding flags to those trees would be sufficient
because the flags would serve as a reminder that the trees are located
along a boundary that the operator must not breach.
The boundaries must mark the limits of all crane movement. For
example, a work zone could be defined by demarcating boundaries: (1) To
the left and right of the operator, to limit the lateral movement of
the boom, and (2) in front of the operator, in a line connecting the
side boundaries, limiting the boom's radius.
In identifying the work zone, the employer must consider the entire
area in which the crane will need to operate. If the crane will need to
be positioned in more than one spot to accomplish its work, or to
travel with a load, the employer must consider the total area in which
it will need to operate and set the boundaries accordingly.
The second option for identifying the work zone (Sec.
1926.1408(a)(1)(ii)) is to define the work zone as the area 360 degrees
around the crane, up to the crane's maximum working radius. In other
words, under this option, the work zone is the area within a circle,
with the crane at the center, and the radius defined by the maximum
working radius of the crane. No boundaries would have to be marked
under this option since the crane would be permitted to operate in the
entire area that it could reach.
Paragraph (a)(2)
Once the employer has identified the work zone according to Sec.
1926.1408(a)(1), it is then required to make the power line hazard
assessment. Specifically, it must determine if any part of the crane,
load or load line (including rigging and lifting accessories) could
come within a ``trigger'' distance--20 feet of a power line. This
determination must be made based upon the assumption that the crane
would be operated up to its maximum working radius (or, if a demarcated
boundary is used, the assessment must be made with the assumption that
the crane would be operated up to that boundary).
Three commenters expressed concern over OSHA's use of the term
``maximum working radius'' in describing the methodology for defining
the work zone. (ID-0146.1; -0206.1; -0209.1.) Their concern is that
using ``maximum working radius'' would trigger the encroachment-
prevention requirements of Sec. 1926.1408(b) on construction sites
where the equipment operator has no intention of using the equipment up
to the equipment's maximum working distance. Another commenter
questioned whether the phrase ``any part of the equipment'' would
include the boom if the boom ``could be lowered within 20 feet of a
power line even though the working radius will not require encroachment
into the 20-foot zone.'' (ID-0178.1.)
OSHA notes that these concerns are already addressed through a
mechanism in the provision as proposed: the employer's ability, under
Sec. 1926.1408(a)(1)(i), to define the work zone boundaries and then
prohibit operation of the equipment beyond those boundaries. In other
words, employers may define the boundary of a work zone at the outer
boundary of the intended working radius of any part of the equipment,
including the boom.
To illustrate, if an employer is using a crane with a maximum
working radius of 100 feet, but intends to extend the crane boom out
only 75 feet beyond the center point of the crane, that employer can
demarcate the outer boundary of the work zone using such measures as a
line of flags, and then prohibit crane operations beyond that 75-foot
work zone boundary. Therefore, in the one commenter's example of where
the boom could come within 20 feet of a power line but the work does
not
[[Page 47953]]
require it, the employer need not take encroachment-prevention measures
if it prohibits working beyond a radius that would bring the boom
within 20 feet of the line. OSHA concludes, therefore, that no change
to the proposed regulatory language is needed to address these concerns
and is promulgating this paragraph as proposed.
If, after defining a work zone, an employer determines that the 20
foot ``trigger'' determination is positive, then the employer is
required to take additional steps. Specifically, the employer must meet
the requirements under either, Option (1), Option (2), or Option (3) of
Sec. 1926.1408(a)(2).\42\ See above discussion of Sec. 1926.1407(a)
for additional information about how OSHA intends to enforce these
compliance options.
---------------------------------------------------------------------------
\42\ If no part of the crane, load or load line could come
closer than 20 feet to a power line, the employer is not required to
take any further action under this section. However, the employer
may encounter a situation where it unexpectedly needs to increase
the size of the work zone. This may occur, for example, as a result
of an unanticipated need to change the crane's position or to have
the crane operate beyond the original work zone boundaries. In such
a case the employer is required to go back to the first step under
Sec. 1926.1408(a)(1), re-identify a work zone and conduct a new 20
foot ``trigger'' assessment.
---------------------------------------------------------------------------
Section 1926.1408(a)(2) is adopted without change from the
proposal.
Paragraph (a)(2)(i) Option (1)
An employer choosing Option (1) of this section will protect
against electrocution by having the power lines deenergized and visibly
grounded at the worksite. This option minimizes the probability that
equipment that contacts the power line will become energized. The power
line must be ``visibly grounded at the worksite.''
One commenter believed that the requirement for visible grounding
was ``impractical and overly burdensome.'' (ID-0146.1.) A second
commenter believed that this requirement was needed to permit the
employer to visually verify that the power line has been deenergized.
(ID-0190.0.)
After reviewing these comments, OSHA continues to conclude, as C-
DAC did, that visible grounding of the deenergized line is necessary to
protect workers. First, it minimizes the voltage that can appear on the
power line from a number of causes, including induced current and
capacitive coupling, lightning, other energized lines falling onto the
power line (for example, where there is a traffic accident involving a
motor vehicle striking a utility pole supporting the power line), and
accidental reenergizing of the lines. It also facilitates the operation
of circuit protective devices to deenergize the line after it is
reenergized from the last two causes. It also serves as a visual
confirmation that the power line has been deenergized. (See discussion
of Sec. 1926.1407(a)(1) where OSHA declines to amend the proposal to
require written confirmation that the power line has been deenergized.)
Where the employer elects to deenergize the power line, it will not
have to implement any of the encroachment/electrocution prevention
measures listed in Sec. 1926.1408(b). However, some amount of time is
needed to arrange for the utility owner/operator to deenergize and
ground the line. Also, in some instances, especially where the
construction project is small, the cost of deenergizing and grounding
may be a substantial portion of the cost of the project. Because of
these factors, deenergizing and grounding, which was also a permissible
option under former Sec. 1926.550(a)(15), has not been routinely done.
Accordingly, the rule provides other safe and practical options to
reduce unsafe practices in the industry. Those other options (Options
(2) and (3) in Sec. 1926.1408(a)(2)(ii) and (iii), discussed below)
combined with Sec. 1926.1408(b) are designed to afford effective
protection against the hazard of electrocution.
Section 1926.1408(a)(2)(i) is adopted as proposed.
Paragraph (a)(2)(ii) Option (2)
Under Option (2) (Sec. 1926.1408(a)(2)(ii)), the employer is
required to maintain a minimum clearance distance of 20 feet. To help
ensure that this distance is not breached and that employees are
protected from electrocution, the employer is required to implement the
encroachment/electrocution prevention measures in Sec. 1926.1408(b).
Employers using this option will have to stay further away from the
power line than had been required under subpart N's 10-foot rule
(employers wanting to use the 10-foot rule will have to use Option (3)
of this section, discussed below).\43\ However, an advantage of this
option to many employers is that they do not have to determine the
voltage of the power line; they only have to determine that the line
voltage is not more than 350 kV.
---------------------------------------------------------------------------
\43\ As discussed above, the 10-foot rule requires varying
clearance distances increase with voltage with clearance distances
that begin at 10 feet.
---------------------------------------------------------------------------
Several commenters verified the Committee's conclusion that
obtaining voltage information from utilities can often be difficult and
time-consuming. (ID-0118.1; -0143.1; -0146.1; -0155.1.) OSHA determines
that by providing a mechanism under Sec. 1926.1408(a)(2)(ii) for
employers to proceed with construction operations without having to
obtain voltage information, employers will have more flexibility
without compromising the safety of workers.
One commenter believed that the maximum clearance distance for this
option should be 15 feet instead of the proposed 20 feet because it
believed such a distance would be safe for what it described as
``relatively small cranes.'' (ID-0184.1.) However, OSHA does not agree
that a distinction based on crane size is justified. When smaller
cranes operate near power lines, they present the same hazard as larger
cranes and need to take similar precautions. OSHA further notes that
smaller cranes, i.e., cranes with shorter booms, will have a smaller
work zone than larger cranes and therefore should be better able to
avoid coming within the permitted 20-foot clearance and, as a result,
may be less likely to trigger the protective steps required under
paragraph (a)(2) of this section in any event. Moreover, if OSHA were
to adopt a 15-foot minimum clearance distance for this option as
advocated by the commenter, it would have to make a corresponding
reduction in the maximum voltage covered by Sec. Sec. 1926.1407 and
1926.1408 and a corresponding increase in the minimum voltage covered
by Sec. 1926.1409 to retain the protection afforded by the 10-foot
rule previously contained in subpart N. Therefore, OSHA has concluded
that it would be inappropriate to decrease the proposed 20 foot minimum
clearance distance under Sec. 1926.1408(a)(2)(ii); this paragraph is
therefore promulgated as proposed.
As noted above, in addition to maintaining a minimum clearance
distance of 20 feet, employers using this option are required to
implement the encroachment prevention and other measures specified in
Sec. 1926.1408(b).
Paragraph (a)(2)(iii) Option (3)
Under Option (3) (Sec. 1926.1408(a)(2)(iii)), the employer is
required to maintain a minimum clearance distance \44\ in accordance
with
[[Page 47954]]
Table A of this section.\45\ Under Table A, depending on the voltage of
the power line, the minimum clearance distance ranges from 10 feet to
20 feet.\46\ Under this option the employer is required to determine
the line's voltage.
---------------------------------------------------------------------------
\44\ The proposed regulatory text for this section used the
phrase ``minimum approach distance'' instead of ``minimum clearance
distance.'' As pointed out by two commenters the latter phrase is
what was used in the proposed Sec. 1926.1407(a)(3)(i) regulatory
text. (ID-0205.1; -0213.1.) For consistency, OSHA has, in this
section, changed the phrase ``minimum approach distance'' to
``minimum clearance distance.'' Provisions in Sec. 1910.269 and
proposed subpart V of 29 CFR 1926 use the phrase ``minimum approach
distance.'' OSHA believes that employers who are covered by those
standards are familiar with that term. In contrast, the Agency
believes that employers that do not perform electric power work will
better understand the term ``minimum clearance distances.'' OSHA
considers the terms ``approach distance'' and ``clearance distance''
to be interchangeable; no substantive distinctions are intended.
\45\ The information in Table A of the final rule is similar to
information in Table 1 of ASME B30.5-2004. A table with specified
clearance distances is more easily applied than the formula set out
in former Sec. 1926.550(a)(15). Table A is intended to be a clear
way of conveying the minimum clearance distances.
\46\ The range referred to here is the range in the part of the
table that is applicable up to 350 kV.
---------------------------------------------------------------------------
In addition to maintaining the minimum clearance distance specified
in the Table, employers using this option are required to implement the
encroachment prevention and other measures specified in Sec.
1926.1408(b).
A labor representative urged OSHA to require a minimum clearance
distance of 20 feet rather than the lower clearance distances allowed
under Table A, in essence eliminating Option (3). (ID-0201.1.) The 20-
foot clearance is needed because, in the commenter's view, under the
options in the proposal, crane operations can easily encroach on an
absolute safe distance from power lines. OSHA does not agree. The
clearance distances permitted under Table A are ``safe'' distances, as
indicated by their inclusion in ASME B30.5-2004 as well as the
consensus reached by C-DAC. As discussed in the preamble to the
proposed rule, the 10-foot rule was not effective under prior subpart N
because subpart N provided little guidance as to how to maintain the
required clearance. In the proposed rule, OSHA discussed how the
provisions of this rule addressed two major problems employers faced in
complying with the minimum clearance requirements of former subpart N:
(1) The lack of a means to enable operators to judge when the crane was
breaching the minimum required clearance distance; and (2) the problem
of temporary operator inattention to a power line as he/she
concentrated on tasks related to moving the load. (73 FR 59749, Oct. 9,
2008.) The provisions of paragraph (b) of this section, discussed
below, are designed to overcome these two problems and ensure
compliance with the minimum clearance distances in this rule. Even
where Table A permits the clearance distance to be the same as the 10-
foot rule of former subpart N, this final rule provides far greater
protection against equipment violating the allowed clearance. It does
not allow a crane ``to very easily encroach'' on a safe clearance
distance, as IBEW suggests.
The labor representative also proposed more stringent requirements
than those currently contained in Sec. 1926.1410 when it is infeasible
to maintain the Table A clearances. OSHA addresses this issue below in
the discussion of Sec. 1926.1410. Accordingly, paragraph (a)(2)(iii)
is promulgated as proposed.
Paragraph (b) Preventing Encroachment/Electrocution
Once the employer has determined that some part of the crane, load
or load line could come within the work zone assessment trigger
distance of 20 feet of a power line (see Sec. 1926.1408(a)), if it
chooses either Option (2) or (3) (of Sec. 1926.1408(a)(2)(ii) and
(iii)), it must implement encroachment prevention measures to help
ensure that the applicable minimum clearance distance (20 feet under
Option (2) or the Table A distance) under Option (3) is not
breached.\47\ Most of the measures in this paragraph are designed to
help the employer maintain the appropriate distance and thereby prevent
electrical contact while operating the equipment. One of the measures
is designed to prevent electrocution in the event of electrical
contact.
---------------------------------------------------------------------------
\47\ Alternatively, under Option (1) of Sec. 1926.1408(a)(i),
the employer could have the lines deenergized and grounded. If
Option (1) were selected, no further action under this section would
be required.
---------------------------------------------------------------------------
Paragraph (b)(1)
Under 1926.1408(b)(1) the employer is required to conduct a
planning meeting with the operator and other workers who will be in the
area of the crane or load. This planning meeting must include reviewing
the location of the power line(s) and the steps that will be
implemented to prevent encroachment and electrocution.
One commenter raised the issue of who is responsible for ensuring
that the planning meeting takes place. (ID-0218.1.) Where encroachment
precautions are required under Option (2) or Option (3) (see Sec.
1926.1408(a)(2)(ii) and Sec. 1926.1408(a)(2)(iii)), the employers of
the operator and other workers who will be in the area of the equipment
or load must ensure that the required planning meeting under Sec.
1926.1408(b)(1) takes place. Other employers at the work site may also
be responsible for such compliance in certain situations; see OSHA CPL
02-00-124, Multi-Employer Citation Policy, Dec. 10, 1999 for further
information.
As discussed below, under this paragraph, certain encroachment/
electrocution prevention measures are required (they are listed in
Sec. 1926.1408(b)(1) through (3)). In addition, the employer is
required to select at least one additional measure from the list in
Sec. 1926.1408(b)(4). In the planning meeting, the employer must make
that selection and review all the measures that will be used to comply
with this section. The purpose of this requirement is to ensure that
the operator and other workers who will be in the area understand these
measures and how they will be implemented. That understanding is
important to their successful implementation. Paragraph (b)(1) is
adopted as proposed.
Paragraph (b)(2)
Section 1926.1408(b)(2) requires that where tag lines are used they
must be nonconductive. This provision provides additional protection to
those employees who would be exposed to electrical hazards in the event
that the equipment, load line, tag line or load contacts a power line
and the tag line they are holding becomes energized. Note the
discussion above related to Sec. 1926.1407(b)(2). This provision is
promulgated as proposed.
Paragraph (b)(3)
Section 1926.1408(b)(3) requires elevated warning lines, barricades
or a line of signs, in view of the crane operator, equipped with flags
or similar high-visibility markings, at 20 feet from the power line (if
using Option (2) of Sec. 1926.1408(a)(2)(ii)) or at the minimum
clearance distance under Table A (if using Option (3) of Sec.
1926.1408(a)(2)(iii)). The steps required by this provision are
designed to remind the operator that there are power lines with
associated minimum clearance distances that must be met. Warning lines,
barricades or a line of signs in the operator's view equipped with
high-visibility markings also indicate to the operator where the
minimum clearance distance boundary is located. This serves as one of
two layers of protection (the second layer consists of an additional
means selected by the employer under Sec. 1926.1408(b)(4), discussed
below).
A commenter urged OSHA to reconsider this requirement because there
is nothing outside of the traveled roadway to which a warning line,
barricade, or line of signs could be affixed. (ID-0114.) OSHA
recognizes that this requirement will often require the employer to
install a series of poles or other supports to install an elevated
warning line. However, temporary
[[Page 47955]]
supports are routinely installed on construction sites, and installing
them for the purpose of enabling the operator to maintain a safe
distance from a power line serves an important safety purpose without
being overly difficult or time-consuming.
A visual line on the ground to mark the minimum clearance distance
is not permitted under Sec. 1926.1408(b)(3) because an operator would
generally not notice or see a line on the ground and because, from
where the operator sits, it would be particularly difficult for the
operator to extrapolate from that line the location of the boundary in
the air. By contrast, visual reminders that are sufficiently elevated
from the ground level enable the operator to more accurately judge the
distance between the load, load line (including rigging and lifting
accessories) or crane and the boundary marked by the elevated warning
line.
In reviewing the C-DAC draft of this provision, OSHA realized that
there may be situations where the employer would not be able to place
such a line so that it would be visible to the operator. In such a
case, to have two layers of protection, it would be necessary to
require that a dedicated spotter be used in addition to one of the
other (non-spotter) methods described below in Sec. 1926.1408(b)(4).
Therefore, in the proposed rule, OSHA stated that it was planning to
modify the proposed provision by adding the following after the last
sentence in Sec. 1926.1408(b)(3):
If the operator is unable to see the elevated warning line, a
dedicated spotter must be used as described in Sec.
1926.1408(b)(4)(ii) in addition to implementing one of the measures
described in Sec. 1926.1408(b)(4)(i), (iii), (iv) and (v).
The Agency requested public comment on this issue. Two commenters
agreed with the substance of the proposed addition to this provision
(ID-0205.1; -0213.1); a third commenter agreed with the proposed
addition but recommended that OSHA go a step further and require a
dedicated spotter at all times (ID-0113). For the reasons explained in
the discussion of Sec. 1926.1408(b)(4) below, OSHA has decided not to
accept this latter recommendation for a dedicated spotter in all cases.
The Agency has, however, included the additional regulatory text
delineated above in the final rule.
Paragraph (b)(4)
This section sets out a list of five prevention measures, from
which the employer must select at least one, when the employer elects
to use either Option (2) or Option (3) under Sec. 1926.1408(a)(2). The
first four measures are methods for encroachment prevention. The fifth
measure is a method of electrocution prevention in the event of
electrical contact with a power line. Specifically, the employer is
required to choose one of the following: (i) A proximity alarm; (ii)
the use of a dedicated spotter; (iii) a device that automatically warns
the operator when to stop (i.e., a range control warning device); (iv)
a device that automatically limits the range of movement of the
equipment; or (once they are available) (v) an insulating link/device,
as defined in Sec. 1926.1401.\48\
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\48\ See discussion later in this section for an explanation of
the delay in the effective date for this provision.
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Proximity alarm performance was the subject of a study conducted by
the National Institute for Occupational Safety and Health (NIOSH)
published in January 2009, and submitted as an exhibit to this
rulemaking. (ID-0141.2.) This study tested the efficacy of two
proximity alarm models under various simulated construction conditions.
The study indicated that the accuracy of the proximity alarms could be
adversely affected by such factors as: (1) Operating the equipment with
a boom angle and length significantly different than that used for the
device's last sensitivity adjustment; and (2) operating the equipment
on sites with multiple overhead power lines, especially where those
power lines had differing voltages or involved intersecting
installations. Two other commenters also questioned the efficacy of
proximity alarms. (ID-0118.1; -0206.1.)
OSHA shares the concerns expressed by NIOSH and other commenters
over the accuracy of currently available proximity alarms.\49\ However,
such concerns are addressed by the definition of ``proximity alarm'' in
Sec. 1926.1401, which states that the term refers to a device ``that
has been listed, labeled, or accepted by a Nationally Recognized
Testing Laboratory in accordance with Sec. 1910.7.'' To be so listed,
labeled, or accepted, the Nationally Recognized Testing Laboratory
(NRTL) must determine that the device works properly by concluding that
it conforms to an appropriate test standard. Accordingly, no proximity
alarm can be listed, labeled, or accepted by a Nationally Recognized
Testing Laboratory (NRTL) in accordance with Sec. 1910.7 until the
problems identified by the commenters have been rectified. OSHA
concludes that retaining this option in the final rule will provide an
incentive for proximity alarm manufacturers to improve these devices to
the point where they will meet the definition's criteria.
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\49\ Neither of the proximity alarm models tested in the NIOSH
study had obtained NRTL listing, labeling, or acceptance.
---------------------------------------------------------------------------
In situations where an employer chooses the option of using a
dedicated spotter, the employer is required to meet the requirements
for spotters in Sec. 1926.1408(b)(4)(ii). As specified in Sec.
1926.1408(b)(4)(ii)(A), the spotter has to be equipped with a visual
aid to assist in identifying the minimum clearance distance.
Under Sec. 1926.1408(b)(4)(ii)(B)-(D), the spotter has to be
positioned so that he/she can effectively gauge the clearance distance
from the power line; the spotter, where necessary, must use equipment
that enables him/her to communicate directly with the equipment
operator; and the spotter must give timely information to the operator
so that the required clearance distance can be maintained.
Some commenters recommended that dedicated spotters be required at
all times. (ID-0112; -0113.) OSHA declines to impose such a
requirement. The Agency determines that allowing the employer to choose
from a variety of options for this second layer of protection allows
the employer to select a method that it believes would be suitable,
increases the likelihood of employer compliance, and will be an
effective approach to reducing power line related injuries and
fatalities.
One commenter also advocated adding a provision requiring dedicated
spotters to pass a visual acuity exam. (ID-0071.) OSHA determines that
it is unnecessary to require a specific level of visual acuity.
Wherever this standard requires an employer to have an individual
perform a particular task, that duty is met only where the individual
has the ability to perform the task. If an employer assigns an
individual to serve as a spotter, but his/her vision is insufficient to
perform the task of a spotter, the employer will not have met the
spotter requirement. For additional discussion of spotter requirements
see the discussion of Sec. 1926.1407(b)(3)(i) earlier in this
preamble.
Section 1926.1408(b)(4)(iii) gives the employer the option of using
a device that automatically warns the operator when to stop movement,
such as a range control warning device. Such a device must be set to
give the operator sufficient warning to prevent encroachment. ``Range
control warning device'' is defined in Sec. 1926.1401 as ``a device
that can be set by an equipment operator to warn that the boom or jib
tip is at a plane or multiple planes.''
For example: An employer has chosen the option of maintaining a 20-
foot
[[Page 47956]]
distance from the power line. Under Sec. 1926.1408(b)(4)(iii), it has
chosen to use a range control warning device to help maintain that
distance. The device would have to be set to alert the operator in time
to prevent the boom, load line or load (whichever is closest to the
power line) from breaching that 20-foot distance. As a practical
matter, the device would have to be set to sound the warning more than
20 feet from the line, since the operator will need some time to react
and to account for the momentum of the equipment, load line and
load.\50\
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\50\ One commenter questioned whether range control warning
devices exist. (ID-0151.1.) OSHA has confirmed that some cranes are
equipped with such a device.
---------------------------------------------------------------------------
Section 1926.1408(b)(4)(iv) gives the employer the option of using
a device that automatically limits the equipment's range of motion and
is set to prevent encroachment. Such a device can be particularly
suitable for tower cranes, for which the swing angle can be programmed
so that the operator cannot move the boom or jib past a certain range.
While it may be more technically difficult to apply swing limitation
devices for use in mobile cranes, the technology may develop so that
they could be used in such cranes as well.
The insulating link option that is available under Sec.
1926.1408(b)(4)(v) would not protect against encroachment but would
provide protection to employees handling the load against electrocution
in the event encroachment did occur. Such a device must be installed
between the end of the load line and the load. When so installed, it
prevents the load from becoming energized in the event the load line or
other part of the equipment makes electrical contact with a power line.
Preventing the load from becoming energized helps protect riggers, who
often guide crane loads manually and who are therefore at high risk of
being electrocuted if a load becomes energized.
Some commenters expressed concern about the effectiveness of
insulating links. (ID-0206.1; -0378.1.) As stated in Sec. 1926.1401,
``Insulating link/device'' is defined as ``an insulating device that
has been listed, labeled, or accepted by a Nationally Recognized
Testing Laboratory in accordance with Sec. 1910.7.'' This definition
addresses this concern, since an insulating link used under this
provision must have been found by a Nationally Recognized Testing
Laboratory (``NRTL'') to conform to an appropriate test standard as
required in Sec. 1910.7.
Because insulating links previously have not been required by any
OSHA standard, OSHA has not yet recognized any testing laboratory as a
NRTL for purposes of insulating link listing, labeling, or acceptance.
A period of time will be needed to review laboratory requests for such
recognition. Once there are NRTLs for testing insulating links, some
time will also be needed for the NRTLs to conduct the tests. As a
result, where Sec. 1926.1408(b) applies, Sec. 1926.1408(b)(4)(v) will
be unavailable as an additional measure in the list contained in Sec.
1926.1408(b)(4) until employers acquire NRTL-approved insulating links.
Therefore, during that period, in addition to implementing the
requirements in Sec. 1926.1408(b)(1)-(3), the employer must implement
at least one of the measures listed in Sec. 1926.1408(b)(4)(i)-(iv).
A commenter suggested that Sec. 1926.1408(b)(4)(v) be deleted
because it involves a live line procedure covered under Sec. 1910.269,
which, it says, requires an operator to be a qualified worker to get
this close to an insulating link. (ID-0161.1.) This commenter
misunderstands the provision. Paragraph (b)(4)(v) allows employers to
use an insulating link between the load line and load as an alternative
to other protective measures. It has nothing to do with live line
procedures under Sec. 1910.269, which is a general industry standard
that applies to operation and maintenance of power lines and which has
no provision regulating the proximity of an operator or a qualified
person to an insulating link.
One commenter pointed out that insulating links do not provide
protection for those employees, such as equipment operators, who are in
contact with the equipment ``upstream'' of the insulating link. (ID-
0053.1.) That is incorrect. Insulating links serve a dual purpose. They
protect a rigger who is handling the load if the equipment upstream of
the link makes electrical contact with a power line. And they protect
employees who are upstream of the insulating link if the load makes
electrical contact with a power line. The workers who are at the
greatest risk of electrocution--the riggers who handle the load, are
also protected by the requirement for nonconductive tag lines. But the
best protection for all workers, and the primary focus of paragraph
(b), is to employ effective encroachment prevention measures to prevent
electrical contact of any part of the equipment and/or load with a
power line. For additional discussion of insulating links, see later in
this preamble where OSHA addresses Sec. 1926.1410(d)(4).
Paragraph (b)(5)
Employers engaged in construction of electric transmission and
distribution lines, which is addressed by 29 CFR part 1926 subpart V
(Sec. Sec. 1926.950-1926.960), also have to meet the requirements in
Sec. 1926.1408, with several exceptions.\51\ The first exception is
found in Sec. 1926.1408(b)(5). The other exceptions are discussed
elsewhere in this preamble. In accordance with Sec. 1926.1408(b)(5),
employers engaged in work involving cranes/derricks that is covered by
subpart V are not required to comply with the requirements in Sec.
1926.1408(b)(4). Subpart V applies to the construction of electric
transmission and distribution lines and equipment, which includes the
alteration, conversion, and improvement of existing lines and
equipment. Thus, when employees are engaged in subpart V work near
energized lines, by the nature of the job, their full attention is on
the power lines. Non-subpart V workers, by contrast, do not work
directly with the lines, and their attention is primarily directed
elsewhere.
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\51\ As discussed in Sec. 1926.1400, Scope, construction of
electric transmission and distribution lines is covered under this
subpart.
---------------------------------------------------------------------------
Subpart V contains additional requirements to protect those
employees against making electrical contact with the lines. These
include requirements in Sec. 1926.950(c) for guarding the line or
using insulation (such as insulating gloves) to prevent electrical
contact. This paragraph is promulgated as proposed.
Paragraph (c) Voltage Information
This section operates in conjunction with Sec.
1926.1408(a)(2)(iii) (Option (3)--Table A clearance). Where an employer
elects to use Option (3) (Sec. 1926.1408(a)(2)(iii)), the employer
must, under Sec. 1926.1408(a)(2)(iii)(A), determine the voltage of the
power lines. Under Sec. 1926.1408(c), utility owner/operators of these
lines must provide the requested voltage information within two working
days of the request (see the discussion above of Sec. 1926.1407(e) for
a description of the public comments received on this requirement and
OSHA's resolution of the issues raised by those comments).
As discussed above with respect to Sec. 1926.1407(e), ``working
days'' means Monday through Friday, excluding Federal holidays. This
provision is promulgated as proposed.
[[Page 47957]]
Paragraph (d) Operations Below Power Lines
When a crane operates below a power line, the likelihood of
breaching the minimum clearance distance is enhanced by several
factors, including the greater difficulty of judging the distance to
the power line when it is above the equipment and the fact that in most
such situations the operator has to purposely look up to see the line
(and therefore is more likely to forget its location or that it is
there).
This section addresses this problem by prohibiting any part of a
crane, load or load line (including rigging and lifting accessories)
from being below a power line unless the employer has confirmed with
the utility owner/operator that the power line is deenergized and
visibly grounded at the worksite or unless the employer can demonstrate
that it meets one of the four exceptions in Sec. 1926.1408(d)(2).
The first exception, Sec. 1926.1408(d)(2)(i), is for work covered
by 29 CFR part 1926 subpart V. Subpart V work involves work on the
power line itself and commonly requires equipment to operate below a
power line. As explained above with respect to Sec. 1926.1408(b)(5),
subpart V work does not require all of the precautions required of
other work because the full attention of the workers is directed at the
power line.
The second exception, Sec. 1926.1408(d)(2)(ii), is for equipment
with non-extensible booms and the third exception, Sec.
1926.1408(d)(2)(iii), is for equipment with articulating or extensible
booms. These exceptions apply when the uppermost part of the boom (for
non-extensible booms) or with the boom at its fullest extension (for
extensible booms), will be more than 20 feet below the plane of the
power line or more than the Table A minimum clearance distance below
the plane of the power line at the boom's most vertical point.\52\
Where this criterion is met, it is not possible for the minimum
clearance distance to be breached.
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\52\ The plane of the power line is the horizontal plane that
touches the lowest point on the lowest power line.
---------------------------------------------------------------------------
The last exception, Sec. 1926.1408(d)(2)(iv), is for situations in
which the employer can demonstrate that it is infeasible to comply with
Sec. 1926.1408(d)(1), which prohibits any part of a crane, load or
load line from being below a power line unless the line is deenergized
and visibly grounded. Under this exception, the employer must not only
show that compliance with Sec. 1926.1408(d)(1) is infeasible, it must
also comply with the requirements in Sec. 1926.1410. Section 1926.1410
governs equipment operations closer than the Table A minimum clearance
distances.
Two commenters requested that OSHA define the term ``infeasible.''
(ID-0203.1; -0214.1.) Infeasibility determinations are fact-dependent,
and OSHA generally considers compliance with a measure to be infeasible
when it is impossible or would prevent performance of the work in
question. See OSHA CPL 02-00-148, ch. 5, sec. VI.B.2, Field Operations
Manual, Nov. 10, 1999. OSHA notes that this is not the first standard
to incorporate feasibility considerations; the Agency has incorporated
feasibility language into many other standards. See, e.g., Fall
Protection (Sec. 1926.502(k)); Permit-Required Confined Spaces (Sec.
1910.146(d)(5)(i)); Bloodborne Pathogens (Sec. 1910.1030(f)(3)(ii));
and Electrical Work Practices (Sec. 1910.333(a)(1)). In letters of
interpretation and guidance documents explaining these and other
standards, OSHA has elaborated on the meaning of infeasibility in
numerous factual contexts. Because infeasibility is a concept of broad
applicability in the OSHA context, and its meaning depends on the
particular facts present in a given worksite situation, a single
definition would not provide useful guidance to employers. Accordingly,
the Agency declines to adopt a definition of that term specific to
subpart CC. Paragraph (d) is adopted as proposed.
Paragraph (e) Power Lines Presumed Energized
This provision requires employers to assume that all power lines
are energized unless the utility owner/operator confirms that the power
line has been and continues to be deenergized and visibly grounded at
the worksite. This fundamental precaution is essentially the same as it
was in subpart N at former Sec. 1926.550(a)(15)(vi). The one commenter
on this proposed provision supported it (ID-0161.1); this provision is
promulgated as proposed.
Paragraph (f)
Paragraph (f) of this section addresses the danger that employees
could receive an electric shock from equipment that is operating near a
transmitter or communication tower. During such operation, the
equipment can act as an antenna and become energized by the
electromagnetic signal emitted from the tower. As proposed, Sec.
1926.1408(f) stated that when the equipment is close enough for an
electrical charge to be induced in the equipment or load, the
transmitter must be deenergized or the following precautions taken: The
equipment must be grounded, and non-conductive rigging or an insulating
link/device must be used.
Previously, subpart N, at former Sec. 1926.550(a)(15)(vii),
required that when equipment is close enough to a transmitter tower for
an electrical charge to be induced, the equipment had to be grounded
and a ground jumper cable used to connect the load to the equipment. In
addition, nonconductive poles having large alligator clips or other
similar protection had to be used to connect the ground jumper cable to
the load. Connecting the load to the grounded equipment dissipated any
electrical charge induced in the load. The Committee determined that
subpart CC's proposed requirement for nonconductive rigging or an
insulating link instead of grounding the load better reflected current
industry practice and better protected employees.
The requirement for nonconductive rigging or an insulating link in
proposed Sec. 1926.1408(f) was a fundamentally different approach than
requiring a ground jumper cable to be connected to the load as was
specified in former Sec. 1926.550(a)(15)(vii). The latter connects the
load to a ground, while proposed Sec. 1926.1408(f) would have
insulated the load from the equipment or employees handling the load.
The Agency requested public comment on whether the proposed
requirement was preferable to that in former Sec.
1926.550(a)(15)(vii). Some commenters agreed that the proposed
requirements would provide better protection of workers and argued that
they were more feasible than the requirements of former Sec.
1926.550(a)(15)(vii). (ID-0205.1; -0213.1.) One commenter believed that
Sec. 1926.1408(f) as proposed was inferior to former Sec.
1926.550(a)(15)(vii) because ``insulating links are generally rated for
distribution voltages and would not properly protect employees working
near power lines.'' \53\ (ID-0209.1.) Another commenter recommended
that the proposed Sec. 1926.1408(f) requirements be supplemented with
a requirement that any insulating link used be rated for the applicable
[[Page 47958]]
transmission tower frequencies, and that nonconductive tag lines be
used.
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\53\ Another commenter opposed the proposed language because it
believed that grounding the equipment under the provisions of former
Sec. 1926.550(a)(15)(vii) would better protect employees, the
crane, and the power line because it would result in a very quick
trip of the line. (ID-0144.1.) This comment is not relevant because
grounding the crane would not cause the transmitter or communication
towers to trip.
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The problem addressed by these comments involves how to protect a
worker, such as a rigger, who may come into electrical contact with the
load. Under the proposed rule, the load would be insulated from the
grounded crane to isolate the load from circulating current that could
cause it to be energized. However, it may be possible that the load
itself could become energized by absorbing energy from the transmitter
or communication tower. The former rule addresses this possibility by
requiring an electrical connection between the load and the (grounded)
equipment. However, in the event there is either a poor electrical
connection or a ground that is not fully effective, this method might
not provide complete protection. Therefore, OSHA has decided not to
require either precaution, but instead to require that any tag line
used be nonconductive. This precaution is required in other provisions,
discussed above, to protect the rigger from the possibility that the
equipment may come into electrical contact with a power line. It will
be equally appropriate here. Section 1926.1408(f) is modified
accordingly.
OSHA notes that former Sec. 1926.550(a)(15)(vii) of subpart N
required employers to provide crews ``with nonconductive poles having
large alligator clips or other similar protection to attach the ground
cable to the load.'' This requirement protected employees from the
electric shock hazard that exists when employees apply grounds. Due to
what the Agency determined was an inadvertent oversight on the part of
the Committee, the proposed rule did not contain provisions addressing
these hazards. Although no commenters raised this issue, OSHA is aware
that employees are exposed to serious electric shock hazards when they
are attaching grounds in accordance with Sec. 1926.1408(f). For
example, when attaching the rigging to the load or the ground to the
crane, the crane and load will be energized. OSHA views this condition
as a recognized hazard and expects employers to ensure that employees
are adequately protected when they are attaching grounds. Employers who
fail to properly protect their employees in this regard will, in
appropriate circumstances, be subject to citation under the General
Duty Clause (sec. 5(a)(1)) of the OSH Act.
It should also be noted that work covered by Sec. Sec. 1926.1407
and 1926.1410 that is performed near transmitter or communication
towers can pose electric shock hazards similar to those addressed by
Sec. 1926.1408(f). Due to another oversight by the Committee, however,
neither Sec. 1926.1407 nor Sec. 1926.1410 contains provisions
addressing these hazards. OSHA considers these to be recognized hazards
and will use its enforcement authority under the General Duty Clause,
as appropriate, to ensure that employers are taking measures, such as
those required in Sec. Sec. 1926.600(a)(6)(vii) or 1926.1408(f), to
protect employees from electric shock and fires while performing work
covered by Sec. Sec. 1926.1407 and 1926.1410 near transmitter or
communication towers. OSHA will consider addressing both of these
oversights through future rulemaking.
A commenter suggested adding a provision to paragraph (f) whereby
the owner of a transmitter communication tower would be required to
evaluate whether power level density levels were high enough to
endanger employees working near the tower and, if so, implement
precautions to prevent them. (ID-0130.1.) The issue raised by this
comment is beyond the scope of this rule, which addresses hazards
related to the use of equipment and not employee exposure to possible
radiation hazards. Such hazards are covered by Sec. 1926.54,
Nonionizing radiation.
Paragraph (g) Training
Paragraph (g) of this section sets forth training requirements for
crane operators and other crew members assigned to work with the
equipment. The training topics listed are designed to ensure that both
the operator and the other crew members have the information they need
to help protect themselves from power line hazards. One commenter
suggested that, in addition to the topics listed in the proposed rule,
employees working on equipment operating closer than Table A clearance
distances also be trained on induction, step and touch potentials, and
proper equipment grounding procedures. (ID-0161.1.) Other commenters
also recommended training in grounding procedures and in the
limitations of the protection that grounding provides. (ID-0131.1; -
0155.1.) OSHA concludes that training on induction, step, and touch
potentials would get into issues that are highly technical and would
not help workers understand what they must do to protect themselves and
others. OSHA does, however, agree with the suggestion that workers be
trained in proper grounding procedures and in the limitations of the
protection that grounding provides. As discussed under Sec. 1926.1410,
equipment grounding is one of the additional precautions required when
it is infeasible to maintain the Table A clearances, and training in
proper grounding procedures will help ensure the effectiveness of this
provision. In addition, employees must understand that grounding may
not afford complete protection. Accordingly, OSHA is adding a new Sec.
1926.1408(g)(1)(v) that requires training in the procedures to be
followed to properly ground equipment and the limitations of grounding.
In addition, proposed Sec. 1926.1408(g)(1)(i)(E) stated that
training was required in the need to avoid approaching or touching
``the equipment.'' In the proposed rule's preamble, OSHA stated that it
determined that C-DAC inadvertently failed to add the phrase ``and the
load'' to that provision, since whenever the equipment is in electrical
contact with a power line, the load may also be energized. OSHA
requested public comment on whether that provision should be modified
to correct this omission. Commenters agreed that adding the phrase
``and the load'' was appropriate. (ID-0051.0; -0205.1; -0213.1.)
Therefore, OSHA has made this addition in the final rule.
In the proposed rule, the Agency noted that proposed Sec.
1926.1408(g) did not address the timing and frequency of this training.
OSHA requested public comment on whether and, if so, how the standard
should address training timing and frequency.
The one commenter on this issue advocated not dictating the timing
or frequency of training in this provision. For the final rule, OSHA
has decided to cross reference the testing administration requirements
of Sec. 1926.1430. That training section requires that employees be
evaluated to confirm that they understand the information provided in
the training, and that refresher training be provided when, based on
employee conduct, there is an indication that retraining is necessary.
Section 1926.1408(g) is modified accordingly.
Paragraph (h)
In the proposed rule, this provision required that where devices
originally designed by the manufacturer for use as safety devices,
operational aids, or a means to prevent power line contact or
electrocution are used to comply with Sec. 1926.1408, they must meet
the manufacturer's procedures for use and conditions of use. The
Committee concluded that this provision is necessary to ensure that the
devices work as intended. No comments were received on this provision,
and it is promulgated without change. (See
[[Page 47959]]
Sec. 1926.1417 for a discussion of OSHA's authority to require
compliance with manufacturer procedures.)
Section 1926.1409 Power Line Safety (Over 350 kV)
As proposed, the requirements in Sec. Sec. 1926.1407 and 1926.1408
would apply to power lines rated over 350 kV in all respects except
one: Wherever the regulatory text states ``20 feet,'' ``50 feet'' would
be substituted. Therefore, the ``trigger'' distance that would be used
when assessing an assembly/disassembly area or work zone would be 50
feet. In addition, an employer engaged in assembly/disassembly that is
using Option (2) of proposed Sec. 1926.1407(a)(2), or an employer
engaged in crane operations that is using Option (2) of proposed Sec.
1926.1408(a)(2)(ii), would be required to maintain a minimum clearance
distance of 50 feet. This would apply to all power lines rated over 350
kV, including power lines over 1,000 kV.
For power lines over 1,000 kilovolts,\54\ employers electing to use
Table A of Sec. 1926.1408 in either assembly/disassembly (Option (3)
in Sec. 1926.1407(a)(3)) or crane operations (Option (3) in Sec.
1926.1408(a)(2)(iii)) are required, pursuant to instructions in the
Table, to maintain a minimum clearance distance determined by the
utility owner/operator or a registered professional engineer who is a
qualified person with respect to electrical power transmission and
distribution.
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\54\ OSHA does not believe that there are any electric power
transmission lines in the United States that operate at more than
800 kV. However, there may be some power lines associated with
research laboratories or other similar facilities that operate at
more than 1,000 kV. In addition, it is possible that utilities may
install new power lines operating at more than this voltage or may
upgrade existing lines to operate at higher voltages.
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In reviewing this regulatory language, OSHA recognized that a
minimum clearance distance of 50 feet may be inadequate for the open-
ended category of ``over 1,000 kV.'' In fact, at some point in that
range, a utility owner/operator or a registered professional engineer
may well specify a minimum clearance distance of more than 50 feet.
However, as drafted in the proposed rule, employers using Option (2)
(in both proposed Sec. Sec. 1926.1407(a)(2) and 1926.1408(a)(2)(ii))
would only have to maintain a minimum clearance distance of 50 feet.
OSHA requested public comment on whether proposed Option (2) is
insufficiently protective for power lines rated over 1,000 kV. The one
commenter on this issue agreed that the proposed provision was
insufficiently protective for power lines carrying voltages greater
than 1,000 kV. OSHA agrees and has modified Sec. 1926.1409 in the
final rule to conform to the requirement of Table A that the minimum
clearance distance for lines over 1,000 kV be determined by the utility
owner/operator or a registered professional engineer who is a qualified
person with respect to electrical power and distribution. OSHA notes
that the minimum distance under Option (2) for voltages between 351 and
1,000 kV is 50 feet. The Agency expects that the distances set by
utilities and registered professional engineers in accordance with
Sec. 1926.1409(b) will be at least 50 feet.
Section 1926.1410 Power Line Safety (All Voltages)--Crane Operations
Closer Than the Table A Zone
Subpart N did not permit work closer than the 10-foot rule \55\
unless the lines were deenergized and visibly grounded or where
insulating barriers, separate from the equipment, were erected.
However, the Committee recognized that many employers, without meeting
the exceptions, nonetheless worked closer than the 10-foot rule. The
Committee determined that most employers do not use the option to
deenergize and ground because of the time, expense and difficulty in
making those arrangements.\56\ In addition, the Committee concluded
that an ``insulating barrier'' of the type that is currently available
does not, by itself, adequately protect employees because these
barriers are only effective for ``brush'' contact. If there is more
than brush contact, they will not protect employees from electrocution
because the equipment will damage the device.
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\55\ As described earlier, the ``10-foot rule'' is shorthand for
the formula in former Sec. 1926.550(a)(15) for minimum clearance
distances. Under the 10-foot rule, for lines rated 50 kV or less,
work was not permitted closer than 10 feet to an energized power
line. For lines rated more than 50 kV, a clearance of 10 feet plus
.4 inch for each 1 kV over 50 kV was generally required.
\56\ If power lines are deenergized and grounded, power is shut
off to the utility owner/operator's customers. As a result, utility
owner/operators are understandably reluctant to implement such
measures.
---------------------------------------------------------------------------
To address the insufficient protections provided to employees who
work closer than the 10-foot rule, the Committee developed, and OSHA
proposed, a new approach, which is contained in Sec. 1926.1410. It
consists of prerequisites and criteria that apply when work must be
conducted closer than the minimum clearance distance specified in Table
A of Sec. 1926.1408.
In this case, the Committee's rationale misrepresented existing
OSHA enforcement policy under subpart N regarding insulating barriers
in two respects. First, current policy recognizes other types of
insulating barriers besides the type to which the Committee
referred.\57\ OSHA also recognizes goal-post-type barriers and, in
certain limited circumstances the insulation on insulated power lines
operating at 480 volts or less. See, e.g., letters of interpretation
dated February 8, 1994, to Mr. Ivan Blood (http://www.osha.gov) and
August 9, 2004, to Mr. Mathew McFarland (http://www.osha.gov). Second,
the Agency does accept barriers that protect against brush contact
under limited circumstances. See, e.g., letter of interpretation dated
February 8, 1994, to Mr. Ivan Blood (http://www.osha.gov).
---------------------------------------------------------------------------
\57\ The barriers are known as electrically insulating plastic
guard equipment. See ASTM F712-06 Standard Test Methods and
Specifications for Electrically Insulating Plastic Guard Equipment
for Protection of Workers.
---------------------------------------------------------------------------
However, as these letters of interpretation recognize, these
barriers have their limitations. Because of this, OSHA has concluded
that, although the Committee's rationale with respect to Sec.
1926.1410 was slightly flawed by a misunderstanding of subpart N
requirements, their reasoning that the provisions of this section are
more protective than the former standard still holds.
This section starts out by explicitly prohibiting equipment from
operating closer than the distances specified in Table A of Sec.
1926.1408 to an energized power line except where the employer
demonstrates compliance with the requirements in Sec. 1926.1410.
Note that, in the discussion below of Sec. 1926.1410, references
to a ``registered professional engineer'' are, in accordance with Sec.
1926.1410(c)(1), references to a registered professional engineer who
is a qualified person with respect to electrical power transmission and
distribution.
One commenter on the proposed rule asked for clarification
regarding who determines whether a professional engineer is such a
``qualified person.'' (ID-0155.1.) Under Sec. 1926.1401, a qualified
person is a ``person who, by possession of a recognized degree,
certificate, or professional standing, or who by extensive knowledge,
training and experience, successfully demonstrated the ability to
solve/resolve problems relating to the subject matter, the work, or the
project.'' At a given construction site, the employer who is conducting
crane operations and who uses the services of the engineer to carry out
that employer's responsibilities under this section is responsible for
determining whether the registered professional engineer is a
[[Page 47960]]
qualified person with respect to electrical power transmission and
distribution.
Paragraphs (a) and (b)
These paragraphs set forth prerequisites that must be met for the
employer to be permitted to operate equipment closer to a power line
than the applicable Table A of Sec. 1926.1408 distance. Section
1926.1410(a) requires the employer to determine that it is infeasible
to do the work without breaching the minimum clearance distance under
Table A. If the employer determines it is infeasible to maintain the
Table A distance, under Sec. 1926.1410(b) it also has to determine,
after consulting with the utility owner/operator, that deenergizing and
grounding the power line, as well as relocating the line, are
infeasible. See discussion of infeasibility determinations in Sec.
1926.1408(d).
Two commenters argued that the requirement to demonstrate
infeasibility was unnecessary for electric utility work regulated under
subpart V. (ID-0203.1; -0209.1.) After careful review of these
comments, OSHA has concluded that it is appropriate for subpart V work
to be excluded from the need to show infeasibility under Sec.
1926.1410.
Subpart V applies to the erection of new electric transmission and
distribution lines and equipment and the alteration, conversion, and
improvement of existing transmission and distribution lines and
equipment (Sec. 1926.950(a)(1)). Construction of new lines generally
takes place some distance from existing lines, and the lines themselves
are not energized until construction is complete. Hence, clearance
distances are usually not an issue for new construction. However,
alteration, conversion, and improvement of existing lines necessarily
takes place on or near the lines themselves. To enable such work to be
done safely, subpart V contains clearance requirements that permit
equipment to operate much closer to the lines than either former Sec.
1926.550 or Sec. Sec. 1926.1408-1926.1409 of this final rule, as well
as supplementary protective requirements that must be followed when the
subpart V clearance requirements cannot be observed.
Subpart V's clearance requirements are found in Table V-1 of Sec.
1926.950. Subpart V does not require a showing of infeasibility before
allowing subpart V work to comply with these shorter clearance
distances, and OSHA concludes that the record does not support
requiring such a showing under the final rule either. The very nature
of work that alters, converts, or improves existing power lines must
necessarily be carried out close to those lines, and it would almost
always be infeasible for the clearances in Sec. Sec. 1926.1408-
1926.1409 to be maintained. As a result, requiring such a finding would
be a formality that would not add to worker safety.
It is similarly inappropriate to require a showing that it is
infeasible to deenergize and ground the lines or relocate the lines
under paragraph (b) of this section for subpart V work. Subpart V
provides for deenergizing and grounding as an alternative to live line
precautions, but it also recognizes that subpart V work may take place
on live lines to avoid power disruptions to the utility's customers and
includes precautions for such live line work. Thus, subpart V leaves to
the utility employer the discretion to decide whether to deenergize and
ground without the need for an infeasibility determination, and OSHA
concludes they should continue to have this same discretion under this
final rule. OSHA also notes that paragraph (b) of this section requires
the employer to consult with the utility owner/operator before deciding
that it infeasible to deenergize and ground the lines or relocate them,
and it would be anomalous to apply this provision where the utility
owner/operator is itself the employer.
For these reasons, OSHA has modified Sec. 1926.1410(c)(2) of the
final rule to clarify that paragraphs (a),(b), and (c)(1) of Sec.
1926.1410 do not apply to work covered by subpart V of 29 CFR 1926.
Instead, the Sec. 1926.950 Table V-1 minimum clearances apply. Section
1926.1410(c)(2) also explains that employers engaged in subpart V work
may work closer than the Sec. 1926.950 Table V-1 distances where both
the requirements of Sec. 1926.1410 and Sec. 1926.952(c)(3)(i) or (ii)
are met.\58\
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\58\ OSHA is in the process of updating subpart V requirements.
If the Agency makes changes to those provisions that necessitate
updating the cross-references in Sec. 1926.1410(c)(2), those
changes will be made as part of that rulemaking.
---------------------------------------------------------------------------
See discussion later in this section regarding other provisions in
Sec. 1926.1410 that deal specifically with subpart V work.
Paragraph (c) Minimum Clearance Distance
After the employer makes the infeasibility determinations required
by Sec. 1926.1410(a) and (b), a minimum clearance distance must be
established. Under Sec. 1926.1410(c)(1), the employer can establish
this distance by either having the utility owner/operator determine the
minimum clearance distance that must be maintained or by having a
registered professional engineer who is a qualified person with respect
to electrical transmission and distribution determine the minimum
clearance distance that must be maintained. The Committee believed that
either of these sources of this information has sufficient expertise to
accurately apply the factors discussed below in setting an appropriate
minimum clearance distance.
Commenters objected to requiring the utility owner/operator to be
involved in setting the minimum clearance distance. (ID-0161.1; -
0162.1.) However, paragraph (c) of this section does not require the
utility owner/operator to establish the minimum clearance distance. It
gives the employer the option of engaging the utility owner/operator
for this purpose but, if the utility owner/operator declines, the
employer must engage a registered professional engineer who is a
qualified person with respect to electrical transmission and
distribution. In no case is the utility owner/operator required to
establish the minimum clearance distance.
Under Sec. 1926.1410(c)(1), regardless of whether it is the
utility owner/operator or a registered professional engineer that makes
this determination, several factors must be considered when
establishing the minimum clearance distance. These factors include, but
are not limited to: conditions affecting atmospheric conductivity; time
necessary to bring the equipment, load and load line (including rigging
and lifting accessories) to a complete stop; wind conditions; degree of
sway in the power line; lighting conditions, and other conditions
affecting the ability to prevent electrical contact.
A commenter objected to allowing cranes to operate closer to power
lines than the ``appropriate minimum approach distance to an energized
line.'' (ID-0226.) He further noted that, under the proposed rule, an
operator could take equipment closer to power lines than a qualified
electrical worker. C-DAC concluded, and OSHA agrees, that workers will
be better protected if employers are required to adhere to additional
safety precautions when it is infeasible to maintain the Table A
clearances. Accordingly, to the extent the commenter recommended that
the standard not permit equipment to come within the Table A distances,
OSHA rejects this commenter's suggestion.
The same commenter objected to allowing equipment operated by
nonelectrical workers to approach closer to power lines than a
qualified electrical worker. The rule does not, however, allow this.
This section requires the
[[Page 47961]]
employer to determine a minimum clearance distance that will prevent
the equipment from making electrical contact with the line. Although
existing subpart V permits employees to take equipment closer to power
lines than Table V-1 of Sec. 1926.950, the corresponding general
industry standard at Sec. 1910.269(p)(4)(i) prohibits the operation of
equipment closer than the distances in Tables R-6 through R-10 of Sec.
1910.269. In the proposed revision of subpart V, the proposed rule
contains the same prohibition as the general industry standard. As a
general matter, OSHA determines that it is not appropriate or safe for
nonelectrical workers to bring equipment closer to power lines than is
permitted under Sec. 1910.269(p)(4)(i) for qualified workers.
Therefore, the Agency does not expect that distances shorter than those
in Tables R-6 through R-10 of Sec. 1910.269 will be adequate ``to
prevent electrical contact'' for purposes of Sec. 1926.1410(c)(1).
Several commenters suggested that when equipment operations closer
than the Table A of Sec. 1926.1408 zone are performed, (1) ``qualified
employees'' (as defined under Sec. 1910.269) should be used (ID-
0161.1; -0199.1); (2) the equipment should be considered energized (ID-
0075.0; -0161.1); and/or (3) the power line should be deenergized (ID-
0161.1; -0226.0).
Regarding the ``qualified employees'' suggestion, OSHA determines
that the training required under Sec. 1926.1410(m), discussed below,
is more appropriate for construction workers working with cranes and
other hoisting equipment than the training required under Sec.
1910.269(a)(2)(ii) for electrical workers. The training required under
paragraph (m) focuses on the actions that employees can take to protect
themselves when working near potentially energized equipment, while the
training under Sec. 1910.269(a)(2)(ii) focuses on safe practices for
working on energized lines.
The second suggestion is valid because prudence dictates treating
the equipment as energized when it is closer than the Table A distance
to an energized power line. However, some provisions of the rule
already treat the equipment as energized. These include paragraph
(d)(8), which requires barricades around the equipment to prevent
unauthorized personnel from entering the work area, and paragraph
(d)(9), which prohibits employees from touching the equipment. OSHA
determines that no additional benefit would be gained by a statement to
treat the equipment as energized and therefore declines to add such a
statement.
The third suggestion misconstrues the standard, which prohibits
work within the Table A clearance distances unless the employer can
show, among other things, that deenergizing and grounding the line is
infeasible. Therefore, except as noted above, Sec. 1926.1410(c) is
promulgated as proposed.
Paragraph (d)
Once a minimum clearance distance has been established under Sec.
1926.1410(c), the employer may not proceed without first having a
planning meeting with either the owner/operator of the power line or
the registered professional engineer to determine what procedures will
be implemented to prevent electrical contact and electrocution. In
accordance with Sec. 1926.1410(e), these procedures have to be
documented and immediately available on-site. In addition, in
accordance with Sec. 1926.1410(f) and (g), these procedures have to be
reviewed with the operator and other workers who will be in the area of
the equipment and the procedures must be implemented (Sec.
1926.1410(e)-(g) are discussed below).
Section 1926.1410(d) sets out the minimum protective measures that
must be included in the procedures set by the employer and utility
owner/operator (or registered professional engineer). These procedures
need to include more stringent protective measures than those set out
in Sec. 1926.1408, because equipment will be in closer proximity to
power lines and there is otherwise a greater risk of contacting a power
line and causing electrocution. Therefore, these procedures have to
include, at a minimum, those set out in the remainder of this section.
Commenters objected to having the utility owner/operator involved
in the planning meeting required by paragraph (d) of this section. (ID-
0161.1; -0162.1.) As with paragraph (c) of this section, discussed
above, the utility owner/operator is not required to become involved
with the decisions that must be made under this section. If the utility
owner/operator declines to participate in the planning meeting, the
employer must engage a registered professional engineer to help
determine the procedures needed to prevent electrical contact. OSHA
notes, however, that equipment making electrical contact with a power
line can disrupt electrical service as well as create a hazard to
employees on the worksite. Therefore, at least in some cases, the
utility owner/operator may wish to help develop precautions to prevent
such electrical contact.
Paragraph (d)(1)
Under paragraph (d)(1) of this section, for power lines that are
equipped with a device that automatically reenergizes the circuit in
the event of a power line contact, the automatic reclosing feature of
the circuit interrupting device must be made inoperative prior to
beginning work. This will help ensure that, in the event of a power
line contact and activation of the automatic reclosing feature, the
line would not be automatically re-energized. One commenter stated that
many circuit interrupting devices currently in use are incapable of
having their automatic reclosing mechanisms disabled. (ID-0155.1.) OSHA
verified that fact and has amended Sec. 1926.1410(d)(1) to clarify
that the automatic reclosing feature must be made inoperative only if
the design of the device permits.\59\
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\59\ This revised language is also consistent with the
provisions of Sec. 1910.269(q)(3)(iv).
---------------------------------------------------------------------------
Paragraph (d)(2)
Under paragraph (d)(2) of this section, a dedicated spotter who is
in continuous contact with the operator must be used. In addition, the
dedicated spotter must be equipped with a visual aid to assist in
identifying the minimum clearance distance, must be positioned to
effectively gauge the clearance distance, where necessary must use
equipment that enables him or her to communicate directly with the
operator, and must give timely information to the operator so the
required clearance distance can be maintained. For a more in-depth
analysis of the dedicated spotter requirement and the public comments
received, consult the discussion of Sec. Sec. 1926.1407(b)(3)(i) and
1926.1408(b)(4)(ii) above. This provision is promulgated as proposed.
Paragraph (d)(3)
Under paragraph (d)(3) of this section, an elevated warning line,
or barricade that is not attached to the equipment, positioned to
prevent electrical contact, must be used. This warning line or
barricade must be in view of the operator either directly or by use of
video equipment and must be equipped with flags or similar high-
visibility markings. The need for an elevated warning line or barricade
is explained above in the discussion of Sec. 1926.1408(b)(3). This
provision does not apply to subpart V work.
As discussed above in relation to Sec. 1926.1408(b)(3), there may
be situations where the operator is not able
[[Page 47962]]
to see an elevated warning line or barricade. To address such
situations, under Sec. Sec. 1926.1408 and 1926.1409, OSHA changed the
regulatory text so that the employer is required to use both a
dedicated spotter and one of the other (non-spotter) measures listed in
Sec. 1926.1408(b)(4). Because the clearance distances are likely to be
significantly smaller than the Table A distances, the Agency determines
that more precise means of estimating the clearance distance are
necessary. When the operator is not able to see an elevated warning
line or barricade when working closer than the Table A clearance
distance, it is necessary to provide an additional layer of protection
by requiring the use of video equipment to enable the operator to see
the warning line or barricade. Therefore, in all cases when working
closer than the Table A clearance distance, the operator will have
``two sets of eyes'' (in addition to other protection required under
this section) to ensure that the equipment maintains the minimum
clearance distance established under Sec. 1926.1410(c). This paragraph
is adopted as proposed.
Paragraph (d)(4) Insulating Link/Device
Under paragraph (d)(4) of this section, an insulating link/device
must be installed at a point between the end of the load line (or
below) and the load. As described in the discussion of Sec. 1926.1408,
an insulating link is a barrier to the passage of electrical current.
When used on a crane, it prevents the load from becoming energized if
the boom or the load line makes electrical contact with a power line
and prevents the equipment from becoming energized if the load contacts
a power line.
As explained in the discussion of Sec. 1926.1408(b)(4)(v), OSHA
anticipates that NRTL approval of these devices, which is necessary
from them to meet the definition of ``insulating link'' under Sec.
1926.1401, will not be available for up to one year after the effective
date of this rule. OSHA is providing two phase-in periods to allow time
for the NRTL recognition process, and to phase in the requirement in a
manner that will reduce the economic burden on employers with existing
inventories of devices that would qualify as ``insulating links/
devices,'' as defined in Sec. 1926.1401, except that they have not
been subject to NRTL approval (``non-approved links''). First, OSHA is
providing for an alternative measure that will be available to all
employers for one year after the effective date of the standard. Sec.
1926.1410(d)(4)(iv). Second, OSHA is allowing employers who have
existing inventory of non-approved links to continue to use these links
for an additional two years (up to a total of three years after the
effective date of the final rule), so long as the same protections
required for the alternative measures available during the one-year
interim period remain in place. Sec. 1926.1410(d)(4)(v). However, the
use of links manufactured after the one-year interim period is
prohibited unless they are NRTL-approved as required by the definition
of ``insulating link/device'' in Sec. 1926.1401.
The absence of an insulating link can result in the load becoming
energized if the equipment makes electrical contact with a power line
or the equipment becoming energized if the load makes electrical
contact with a power line. When working inside the clearances permitted
under Table A, the danger of such electrical contact is increased. As
an interim precaution until insulating links (as defined in Sec.
1926.1401) become available, OSHA is requiring that all employees who
may come in contact with the equipment, the load line, or the load,
excluding equipment operators located on the equipment, must be
insulated or guarded from the equipment, the load line, and the load.
Insulating gloves rated for the voltage involved are adequate
insulation for the purposes of this alternative. This interim
precaution will provide some degree of protection to employees working
near the equipment or load by providing a layer of insulation should
the equipment or the load become energized. During the one-year interim
period following the effective date of subpart CC, OSHA is encouraging,
but not requiring, the use of non-approved links as an extra form of
protection (although they cannot be used to satisfy the standard).
OSHA is also providing a separate alternative measure that would
apply for an additional two-year transition period (following the
first-year interim period, for a total of three years) to address
employers who already own or purchase non-approved links. See Sec.
1926.1410(d)(4)(v). Under this alternative, employers with non-approved
links would be required to use them in addition to other alternative
measures required under Sec. 1926.1410(d)(4)(iv) during the initial
one-year interim period. To be eligible for this alternative measure,
employers must use and maintain these non-approved links in compliance
with manufacturer requirements and recommendations. While OSHA
anticipates that NRTL-approved insulating links will be available for
purchase within a year after the effective date of subpart CC, the
Agency recognizes that some employers will have existing inventories of
non-approved links. OSHA is, therefore, allowing employers the
additional two years to phase out the use of the non-approved links to
reduce the economic burden of replacing the existing inventory of non-
approved links.
As noted above, OSHA encourages employers to use non-approved links
during the initial one-year interim period as an extra measure of
protection, but is not requiring employers to use them during this
interim period. The Agency recognizes that some employers might not
already own these devices because OSHA did not mandate their use under
subpart N. If OSHA required the use of non-approved links during the
initial one-year interim period, these employers would be forced to
incur additional costs for devices that could only be used for a fixed
period of one to three years.\60\ However, once the NRTL-approved links
are available for purchase, the cost of purchasing the NRTL-approved
links would be a capital investment that could be amortized over the
normal life of the insulating link.
---------------------------------------------------------------------------
\60\ While the record indicates that these devices are available
for rental, it is not clear from the record that all employers would
have access to the businesses renting these devices.
---------------------------------------------------------------------------
Several commenters noted the limitations of insulating links/
devices and advocated for the ability to employ alternative measures
when necessary. For example, commenters stated that no insulating
links/devices were readily available for loads above 60 tons or
voltages above 33 kV. (ID-0132.1; -0155.1; -0197.1.) In addition,
commenters noted that the added length of rigging that results when
insulating links are used can create problems in locations where there
is limited overhead clearance. (ID-0132.1; -0155.1; -0197.1.)
Another commenter who manufactures insulating links stated that
insulating links are available with lifting capacities of up to 120
tons and voltage capacities of up to 125 kV.\61\ (ID-0216.1.)
Therefore, OSHA concludes that no changes are necessary to address the
objections to the proposed insulating link requirement based on load or
voltage capacities. However, OSHA has concluded that some accommodation
may be necessary to address conditions associated with electric utility
operations in work areas
[[Page 47963]]
with low overhead clearance from power lines.\62\ Accordingly, OSHA has
added an alternative to this provision for subpart V operations where
use of an insulating link is infeasible. However, this provision should
rarely, if ever, be available to employers, as there are several
alternatives to using a crane or derrick in this operation including
use of an aerial lift with a material handler or a manual hoist. The
alternative requires use of alternate electrical safety precautions;
specifically, the alternate precautions are those required under the
electric power generation, transmission, and distribution regulations
applicable to general industry under Sec. 1910.269(p)(4)(iii)(B) or
(C). Those precautions require either that the hoisting equipment be
insulated for the voltage involved, or that each employee be protected
from hazards that might arise from equipment contact with energized
lines.\63\
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\61\ Refer to the discussion of Sec. 1926.1408(b)(4)(v) for a
description of other comments received concerning insulating links
in the context of that provision.
\62\ The example provided by the commenter was replacement/
repair of utility pole transformers. (ID-0155.1.) Such operations
frequently involve hoisting transformers onto and off of utility
poles immediately beneath power lines. The commenter stated that
frequently in those operations there is barely sufficient room for
the boom head itself; when an insulating link is added to the load
line, the extra 2-3 feet of rigging prevents the hoisting of the
transformer to the required elevation. The commenter did not explain
why an aerial lift or manual hoist could not be used.
\63\ See discussion of this paragraph below under subpart V-
work.
---------------------------------------------------------------------------
Paragraph (d)(5)
Under paragraph (d)(5) of this section, if the rigging may be
closer than the Table A of Sec. 1926.1408 distance during the
operation, it must be of the nonconductive type. This provides
protection to those employees who would be exposed to electrical
hazards in the event that the rigging contacts a power line, which
otherwise could energize the rigging and the load.
One commenter stated that he was unaware of any sling manufacturers
who market their slings as being nonconductive, and that there are no
test standards for testing the dielectric properties of slings. (ID-
0155.1.) As noted in the discussion of tag lines of Sec.
1926.1407(b)(2), C-DAC considered the utility of setting specifications
for material required to be nonconductive but determined that it would
be impractical, and OSHA has additionally concluded that there is no
need to specify test criteria for these materials. The guidance
provided for determining whether a tag line is nonconductive applies
equally here. Slings made from nonmetallic fibers will meet the
standard provided they are not wet, dirty, or have substances on or in
them that will conduct electricity. Therefore, OSHA has concluded that
the requirement that rigging that may be closer than the Table A
distance be nonconductive is appropriate, and the provision is
promulgated as proposed.
Paragraph (d)(6)
Under paragraph (d)(6) of this section, if the crane is equipped
with a device that automatically limits range of movement, it must be
used and set to prevent any part of the crane, load or load line
(including rigging and lifting accessories) from breaching the minimum
clearance distance established under Sec. 1926.1410(c). This paragraph
is promulgated as proposed.
Paragraph (d)(7)
Under paragraph (d)(7) of this section, if a tag line is used it
must be nonconductive. This requirement provides additional protection
to those employees who would be exposed to electrical hazards in the
event that the equipment contacts a power line and the tag line they
are holding becomes energized, or in the event that the tag line itself
makes contact with the power line.
Refer to the discussion of Sec. 1926.1407(b)(2) for further
explanation of tag line non-conductivity and public comments received
on this subject. This provision is promulgated as proposed.
Paragraph (d)(8)
Under paragraph (d)(8) of this section, barricades must be used to
form a perimeter at least 10 feet away from the equipment to prevent
unauthorized personnel from entering the work area. In areas where
obstacles prevent the barricade from being at least 10 feet away, the
barricade is required to be as far from the equipment as feasible. This
provision, along with Sec. Sec. 1926.1410(d)(9) and 1926.1410(d)(10),
minimizes the likelihood that any more employees than are absolutely
necessary to the operation will be near the equipment in the event the
equipment, load or load line makes electrical contact with the power
line. No comments were submitted on this provision; therefore, it is
promulgated as proposed.
Paragraph (d)(9)
Under paragraph (d)(9) of this section, employees other than the
operator are prohibited from touching the load line above the
insulating link/device and equipment. The reason C-DAC did not extend
this prohibition to the operator is that the operator, by being in the
cab, is going to be in electrical contact with both the equipment and
load line. However, this assumes that the operator is in fact standing
or sitting on the equipment. There may be some situations where this is
not the case. For example, some equipment may be operated by pendant
control or wireless control; in such cases the operator need not be on
the equipment to control it. OSHA requested public comment on this
issue.
Commenters agreed that equipment operators operating from the
ground via remote controls need to be protected from potential shocks
by either (1) using wireless controls that physically isolate the
operator from the equipment; or (2) using insulating mats that insulate
the operator from the ground. (ID-0062.1; -0162.1.) OSHA agrees with
these comments. Although rubber insulating matting is designed for use
as a floor covering, the Agency determines that such mats can provide
an additional measure of protection for workers operating the equipment
from the ground.\64\ OSHA has amended paragraph (d)(9) accordingly.
---------------------------------------------------------------------------
\64\ The proposed revision of subpart V also proposed a new
construction standard for electrical protective equipment, which
would cover rubber insulating matting. Until the subpart V revision
is finalized, rubber insulating matting meeting ASTM D178-01(2005)
Standard Specification for Rubber Insulating Matting, meets the
requirement in final Sec. 1926.1410(d)(9) for insulating mats.
---------------------------------------------------------------------------
Paragraph (d)(10)
Under paragraph (d)(10) of this section, only personnel essential
to the operation are permitted to be in the area of the equipment and
the load. In conjunction with Sec. Sec. 1926.1410(d)(8) and
1926.1410(d)(9), this minimizes the likelihood that any more employees
than are absolutely necessary to the operation would be in a position
to make electrical contact with the equipment in the event the
equipment, load or load line makes electrical contact with the power
line. No comments were submitted on this provision; it is promulgated
as proposed.
Paragraph (d)(11)
Under paragraph (d)(11) of this section, the equipment must be
properly grounded. As described in the summary and explanation of final
Sec. 1926.1408(a)(2)(i) Option (1), in the event the equipment
inadvertently makes electrical contact with the power line, proper
grounding will protect employees in two ways. First, if the line is
equipped with a circuit interrupting device, the grounding facilitates
the operation of the device to deenergize the line. However, under some
conditions, for example, if there is arcing contact or if the contact
is near the end of a power
[[Page 47964]]
line, the fault current may not be high enough to open the circuit for
the power line. Second, in the event an employee on the ground is
touching the equipment when it contacts the power line or if the
circuit protective device does not operate to deenergize the power
line, proper grounding will reduce the danger to the employee by
providing an additional, low resistance path to ground for the electric
current, substantially lowering the voltage on the equipment while the
power line remains energized.\65\
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\65\ It should be noted that hazardous potential differences can
be created in the ground when a contact occurs, and employees
standing close to, but not touching, anything in contact with the
power line can still be injured or killed. The requirements in Sec.
1926.1425, Keeping clear of the load, which are designed to protect
employees from being struck or crushed by hazards, will also protect
employees from these electrical hazards.
---------------------------------------------------------------------------
Commenters on this provision stressed the need for worker training
on proper equipment grounding procedures and the limitations of the
protection that grounding provides. (ID-0131.1; -0155.1; -0161.1.) OSHA
agrees. As discussed under Sec. 1926.1408(g), OSHA is requiring that
the training under that paragraph include training in proper grounding
procedures and the limitations of the protection grounding provides. To
make clear that the training required under Sec. 1926.1408(g) is also
required under this section, OSHA is adding Sec. 1926.1410(m),
discussed below, to require that operators and crew assigned to
equipment under this section be trained in accordance with Sec.
1926.1408(g). Section 1926.1410(d)(11) is promulgated as proposed.
Paragraph (d)(12)
Under paragraph (d)(12) of this section, insulating line hose or
cover-up must be installed by the utility owner/operator except where
such devices are unavailable for the line voltages involved. The
Committee noted that prior subpart N, at former Sec. 1926.550(a)(15),
allowed such insulating barriers to be used as a complete alternative
to deenergizing and grounding or to maintaining the applicable minimum
clearance distance from the power line. However, the Committee
determined that such insulating devices do not provide complete
protection because they can be pierced if the equipment makes more than
brushing contact with the device. However, the Committee concluded that
these insulating devices do provide protection if there is brushing
contact and that such devices are useful to supplement the other
protective measures provided by the requirements of this Sec.
1926.1410(d).
One commenter on this provision believed that when work is being
performed under Sec. 1926.1410 around voltages above which insulating
line hose or cover-up are available, OSHA should require that the power
line be deenergized and visibly grounded. (ID-0161.1.) Another
commenter stated that the Committee correctly limited the use of line
hoses and similar rubber cover-ups as complete protection since it can
be pierced, but stated that it was unfortunate that the Committee
prohibited the use of other rigid plastic barriers that are effective
insulation and are not easily pierced. (ID-0144.1.) Regarding the
former comment, OSHA notes that the rule applies only when the employer
demonstrates that it is infeasible to deenergize and ground the power
line. Also, the provision does not require that line hose or cover-up
be made of rubber; if rigid plastic barriers provide effective
insulation for the voltage involved, they are permitted by this
paragraph. OSHA also notes that rigid plastic barriers (that is,
electrically insulating plastic guard equipment) is also intended for
brush contact only. (See ASTM F712--06 Standard Test Methods and
Specifications for Electrically Insulating Plastic Guard Equipment for
Protection of Workers.) Although this equipment may be able to
withstand higher forces, it is easier to displace than rubber
insulating line hose. This provision is promulgated as proposed.
Paragraph (e)
Under paragraph (e) of this section, the procedures that are
developed to comply with Sec. 1926.1410(d) must be documented and
immediately available on-site. This ensures that these procedures are
available to be used as a reference while the work is in progress.
No comments on this provision were submitted, and it is promulgated
as proposed.
Paragraph (f)
Under paragraph (f) of this section, the equipment user and utility
owner/operator (or registered professional engineer) must meet with the
equipment operator and the other employees who will be in the area of
the equipment or load to review the procedures that are developed under
Sec. 1926.1410(d) to prevent a breach of the minimum clearance
distance established under Sec. 1926.1410(c). It is important that
this review take place so that the operator and other employees
understand this critical information and have the opportunity to
discuss the procedures with the utility owner/operator or registered
professional engineer who developed the procedures.
OSHA notes that proposed Sec. 1926.1410(f) referred only to the
utility owner/operator. However, under Sec. 1926.1410(d), the
procedures are determined in a planning meeting with either the utility
owner operator or a registered professional engineer, and whichever
entity helped develop those procedures must also participate in the
meeting required under paragraph (f). Therefore, OSHA has modified this
paragraph by adding a reference to the registered professional engineer
as an alternative to the utility owner/operator.
Several electric utility representatives questioned OSHA's
authority to impose these and other requirements upon power line owners
and operators. (ID-0162.1; -0166.1; -0203.1; -0226.1.) As stated above
in response to similar arguments, this paragraph does not require the
utility owner/operator to take any action. Another commenter asked who
was responsible for bearing the costs of deenergizing power lines and
other safety precautions, and what would happen if a utility owner/
operator was unable to meet the equipment user at the requested time.
(ID-0155.1) As stated above with respect to compliance costs, OSHA
determines that issues of compliance costs and specific obligations are
best handled as contractual matters among the parties involved, and/or
as prescribed by local and regional utility regulatory authorities.
Paragraphs (g) and (h)
Under paragraph (g) of this section, the employer must implement
the procedures developed in accordance with Sec. 1926.1410(d). And
under paragraph (h) of this section, the utility owner/operator (or
registered professional engineer) and all employers of the employees
involved in the work must identify one person who will direct the
implementation of the procedures. This person must direct the
implementation of the procedures and have the authority to stop work at
any time to ensure safety. As with paragraph (f) of this section, OSHA
is adding a reference to the registered professional engineer to
paragraph (h) to ensure that the entity that helped develop the
procedures participate in the decision required under paragraph (h).
The Committee concluded that, in view of the fact that more than
one employer is typically involved in these situations, coordination
among the employers of these employees is needed for the protective
measures to be effectively implemented. Once the
[[Page 47965]]
operation is underway, safety-related orders typically need to be given
and followed without delay. Since an employee of one employer typically
would not immediately follow an instruction from another employer, it
is necessary that, before these operations begin, all employees
understand that the one designated person will have this authority. For
these reasons, the Committee determined that there needs to be one
person who all involved in the operation recognize as having this role
and authority.
A commenter objected to having the utility owner/operator involved
in determining which individual should direct implementation of the
procedures, saying that the decision should be made by the contractors.
(ID-0155.1.) OSHA notes that this provision is closely tied to
paragraphs (d) and (f) of this section, under which the utility owner/
operator or registered professional engineer is involved in developing
the procedures and in reviewing the procedures with the appropriate
employees. At this point, the utility or registered professional
engineer is well situated to help identify an individual who is able to
direct the implementation of the procedures. As with the other
provisions of this section that require the involvement of the utility
or a registered professional engineer, the utility has the discretion
not to participate, in which case the employer operating the equipment
must use a registered professional engineer.
Paragraph (i) [Reserved]
Paragraph (j)
This provision requires the employer to safely stop operations if a
problem occurs with implementing the procedures in paragraph (d) of
this section or if there is an indication that those procedures are
inadequate to prevent electrocution. In addition, this provision
requires that the employer either develop new procedures which comply
with paragraph (d) or contact the utility owner/operator and have them
deenergize and visibly ground or relocate the power line(s) before
resuming operations.
Two commenters suggested that the utility might not be able to
deenergize the lines for medical or security reasons and asked what
would happen in such a case. (ID-0155.1; -0162.1.) OSHA recognizes that
utilities may not be willing or able to discontinue power to their
customers, and Sec. 1926.1410(j) permits relocating the line as an
alternative to deenergizing.
An electric utility representative requested that OSHA clarify
which employer has the responsibility to comply with this provision,
stating it should be the equipment operator and not the utility owner/
operator. (ID-0161.1.) OSHA notes that this paragraph's requirement for
the employer to ``safely stop operations'' applies to the employer(s)
who are conducting the operation, and the requirement for that employer
to contact the utility owner/operator after stopping operations makes
clear that a utility owner/operator who is not conducting equipment
operations near the power line is not the ``employer'' under this
paragraph. OSHA concludes these points are sufficiently clear, and the
provision is promulgated as proposed.
Paragraph (k)
Proposed paragraph (k) required that, where a device originally
designed by the manufacturer for use as a safety device, operational
aid, or a means to prevent power line contact or electrocution is used
to comply with Sec. 1926.1410, it must meet the manufacturer's
procedures for use and conditions of use. (See Sec. 1926.1417 for a
discussion of OSHA's authority to require compliance with manufacturer
procedures.) No comments were received on this provision; it is
promulgated as proposed.
General Comment
A commenter suggested that OSHA consider requiring a written permit
as a precondition to any work being done closer than 20 feet to a power
line.\66\ (ID-0201.1.) The permit, according to this commenter, should
document many of the requirements of this section, including the basis
for the employer's infeasibility determinations, the utility owner/
operator's or registered professional engineer's determination of a
minimum clearance distance, the specific procedures to be followed in
performing the work, verification that the employees have received the
required training, and other information relevant to the work. The
commenter did not explain why it believed such a permit system would
result in greater safety, but OSHA infers that the commenter believes
that the need to document certain information, such as the basis for
the employer's infeasibility findings, will lead to more careful
consideration of the factors that enter into the decision that it is
necessary to work closer to a power line than is normally permitted and
more carefully thought out procedures when such work is done. OSHA is
not convinced that a permit system is needed to ensure that employers
act carefully under this section. OSHA expects that the stringent
precautions required when employers work closer than the Sec.
1926.1408 and Sec. 1926.1409 clearance distances will ensure that an
employer will only determine that it is infeasible to work within those
distances if there is really no other viable option. Similarly, the
requirement that a minimum clearance distance must be determined by a
utility owner/operator or registered professional engineer ensures that
sound expert judgment will enter into that determination without the
need for additional documentation.
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\66\ This commenter recommended that 20 feet should be the
minimum clearance distance for all work and that Table A of Sec.
1926.1408 should be deleted. OSHA explained in Sec. 1926.1408 why
it was rejecting this suggestion.
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Subpart V Work
In the proposed rule, OSHA discussed in detail the compliance
duties the rule would impose on employers engaged in subpart V work
(see 73 FR 59762-59764, Oct. 9, 2008). Industry representatives
objected to some of the changes from the requirements of subpart V.
Among other things, they pointed to another ongoing rulemaking in which
OSHA proposed to amend subpart V in ways that differ from the changes
proposed by C-DAC (70 FR 34821, Jun. 15, 2005).\67\
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\67\ The subpart V proposed rule was published after C-DAC
completed its work.
---------------------------------------------------------------------------
OSHA proposed requirements in addition to those in subpart V
because it had already concluded that the measures required by subpart
V for the operation of equipment near power lines are insufficiently
protective. (See the discussion of Sec. 1910.269(p)(4) in the preamble
to the final rule promulgating the general industry standard on the
operation and maintenance of electric power generation, transmission,
and distribution installations (59 FR 4320, 4400-4404, Jan. 31, 1994)).
Although proposed subpart V would require measures that are
sufficiently protective, OSHA has not yet adopted it as a final rule.
Consequently, the Agency is taking action today to increase the
protection currently afforded by subpart V. In doing so, OSHA has also
addressed the concerns raised by utility industry representatives.
First, as discussed above, OSHA has made several changes to the
final rule in response to comments from the electric utility industry.
These include: (1) An expanded exclusion for digger derricks used in
utility pole work; (2) deleting the requirement that employers engaged
in subpart V work show the infeasibility of complying with the required
clearance distances in Sec. Sec. 1926.1408
[[Page 47966]]
through 1926.1409; and (3) an alternative to the requirement for
insulating links under Sec. 1926.1410(d)(4).
In addition, employers engaged in subpart V activities are not
required to implement certain other protective measures required by
this standard when working near power lines. As discussed above,
subpart V work would not be subject to the requirement for an
additional protective measure from the list in Sec. 1926.1408(b)(4).
Also, subpart V work would not be subject to the prohibition in Sec.
1926.1408(d)(1) against equipment operating under power lines (see
discussion above of Sec. 1926.1408(d)(2)(i)). And Sec.
1926.1410(d)(3) provides that an employer engaged in subpart V work
closer than the Table A of Sec. 1926.1408 distance is not required to
use an elevated warning line or barricade.
In recognition of the fact that much subpart V work necessarily
takes place on or near energized power lines, employers engaged in such
work may comply with shorter minimum clearance distances than those
specified in Sec. Sec. 1926.1408 and 1926.1409: they must generally
adhere to the clearance distances in Table V-1 of Sec. 1926.950.
However, Sec. 1926.952(c)(2) (redesignated as Sec. 1926.952(c)(3) as
a result of this rulemaking) permits clearances less than those in
Table V-1 and includes requirements that must be met when equipment is
operating closer to power lines that those distances. To make this
clear, Sec. 1926.1410(c)(2) provides: ``Employers engaged in subpart V
work are permitted to work closer than the distances in Sec. 1926.950
Table V-1 where both the requirements of this section and Sec.
1926.950(c)(3)(i) or (ii) are met.'' \68\ OSHA is also making
conforming amendments to Sec. 1926.952(c)(3), which was formerly
designated Sec. 1926.952(c)(2).
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\68\ The proposed rule referred to ``Sec. 1926.950(c)(2)(iii)
or (iv).'' The final rule reflects the changes in numbering to Sec.
1926.950(c)(2) that are made elsewhere in this final rule.
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Under this section, the precautions previously specified in
Sec. Sec. 1926.952(c)(2)(i) and (ii) are required under Sec.
1926.1410(d) when equipment used in subpart V work is operated closer
than the Table V-1 clearances. Since these precautions are now required
by Sec. 1926.1410(d), OSHA is deleting them from subpart V as
redundant. Therefore, OSHA is including the non-redundant provisions
from the proposed rule in the final rule, with proposed Sec.
1926.952(c)(2) redesignated as Sec. 1926.952(c)(3).\69\
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\69\ In subpart V, when equipment is considered energized, a
number of subpart V requirements are triggered. See, e.g., Sec.
1926.951(c)(1) (restricting use of metal or conductive ladders near
energized equipment); Sec. 1926.951(f)(3) (hydraulic tools used on
or around energized equipment shall use nonconducting hoses); Sec.
1926.953(c) (materials or equipment shall not be stored near
energized equipment if it is practical to store them elsewhere).
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One commenter opposed deleting former Sec. Sec. 1926.952(c)(2)(i)
and (ii) because the commenter believed that it would not be confusing
to duplicate requirements now found in subpart CC in subpart V. OSHA
disagrees. As amended by this rule, Sec. 1926.952(c)(3) states that
its requirements are ``in addition to'' the requirements in Sec.
1926.1410. Restating requirements in Sec. 1926.952(c)(3) that are also
found in Sec. 1926.1410 can lead to uncertainty over whether the
duplicate requirements are in fact redundant or are separate
requirements.\70\
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\70\ Amendments to Sec. 1926.950(c)(1) are discussed in Sec.
1926.1400, Scope.
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OSHA notes that in this zone, one of the options that an employer
engaged in subpart V has under prior Sec. 1926.952(c)(3)(i) is to
insulate the equipment. Under Sec. 1926.1410(d)(11), that employer
also must ground the equipment. An employer can comply with both
requirements by using equipment with an insulating boom and grounding
the uninsulated portion of the equipment (that is, the portion below
the insulated section of the boom).
It should also be noted that, in the subpart V rulemaking, OSHA has
proposed to prohibit equipment (other than insulated aerial lifts,
which are not covered by this final rule) from being operated closer
than the minimum approach distances from power lines. If this
prohibition is carried into the final subpart V rule, then the
requirements in this final rule relating to work inside the distance in
Table V-1 will have no effect.
Finally, Sec. 1926.1400(g) includes a new compliance alternative
for subpart V work that has been added to the final rule.
Paragraph (l) [Reserved]
Paragraph (m)
As noted above, the training requirements contained in Sec.
1926.1408(g) are being added to this section as well to assure that
employees engaged in activities under this section receive adequate
training.
Section 1926.1411 Power Line Safety--While Traveling Under Power Lines
With No Load
Paragraph (a)
Proposed paragraph (a) provided that this section is designed to
protect against electrical hazards while equipment is traveling with no
load under power lines on a construction site. It did not address the
potential hazards associated with equipment traveling without a load
near power lines. OSHA requested public comment on whether it is
necessary to expand the applicability of this section to include
equipment traveling on a construction site without a load near power
lines.
Two commenters favored broadening the applicability of Sec.
1926.1411 to include equipment traveling near power lines, with
``near'' being defined as the distances listed in Table T. (ID-0205.1;
-0213.1.) One commenter responded that adding an additional set of
power line clearance distances to trigger the requirements of Sec.
1926.1411 would be confusing. (ID-0144.1.) A fourth commenter thought
that the requirements of Sec. 1926.1411 should extend to cover
equipment traveling ``along side of'' power lines, but did not suggest
a definition for the term ``along side of.'' (ID-0155.1.)
After considering these public comments, OSHA concludes that this
section should address the hazard of equipment traveling near, as well
as under, power lines with no load. If equipment comes into electrical
contact with a power line while traveling without a load, the same
electrocution hazard is present as when it is operating with a load.
The precautions in this section will protect workers against that
hazard.
OSHA agrees with the two commenters who suggested that Table T of
this section contains appropriate clearances for equipment traveling
near, as well as under, power lines. Applying Table T to equipment
traveling near power lines will provide a uniform rule for this section
and will ensure adequate worker protection. Although the Table T
clearance distances are less than those required under Table A of Sec.
1926.1408 during crane operations, additional protection is provided
under this section by the requirement in paragraph (b)(1), discussed
below, that the boom/mast and boom/mast support system be lowered
sufficiently to meet the requirements of this paragraph. With the boom/
mast lowered, the highest point of the equipment will generally be
below the plane of the power line, reducing the risk of accidental
contact. Moreover, as also noted below, the dedicated spotter
requirement of Sec. 1926.1411(b)(4) will be triggered whenever the
equipment while traveling will get closer than 20 feet to a power line,
thereby providing additional protection against accidental contact.
[[Page 47967]]
Accordingly, in the final rule, paragraph (a) applies to
``equipment traveling under or near a power line on a construction site
with no load.'' In addition, in the proposed rule, the heading of Sec.
1926.1411 read: ``Power line safety--while traveling.'' In the final
rule, OSHA has added the words ``under or near power lines with no
load'' so that the heading more clearly describes the activity to which
the section applies.
These requirements apply only to cranes/derricks while traveling on
a construction site under or near power lines; they do not apply to
equipment while traveling on roads (or in areas) that are not part of a
construction site. In addition, this section does not apply to
equipment traveling on a construction site with a load. That situation
is governed by Sec. Sec. 1926.1408, 1926.1409, and 1926.1410. To make
this clear, OSHA is adding the language to paragraph (a) specifying
that Sec. Sec. 1926.1408, 1926.1409, and 1926.1410, whichever is
appropriate, govern equipment traveling on a construction site with a
load.
Paragraph (b)
Under paragraph (b)(1) of this section, the boom/mast and boom/mast
support system must be lowered sufficiently to meet the requirements of
this paragraph. Paragraph (b)(2) specifies that the clearances
specified in Table T of this section must be maintained. The values in
Table T, which provides the minimum clearance distances while traveling
with no load and a lowered boom, are substantially similar to the
values used in sec. 5-3.4.5.5 of ASME B30.5-2004.
In the proposed rule, the heading of Table T read: ``MINIMUM
CLEARANCE DISTANCES WITH NO LOAD AND BOOM/MAST LOWERED.'' In addition,
each clearance distance in the table was followed by the following
parenthetical: ``(while traveling, boom lowered).'' OSHA determines
that the references to the boom in the heading and parentheticals could
be confusing. The intent of the table is to establish minimum clearance
distances while the crane is traveling, not clearance distances with
the boom lowered. As noted in the discussion of Sec. 1926.1411(b)(1),
the boom and/or mast must be lowered sufficiently to comply with Table
T; it is not a prerequisite to the applicability of Table T.
Accordingly, in the final rule, the words ``AND BOOM/MAST LOWERED'' are
deleted from the heading of Table T, and the parentheticals are also
removed from the clearance distances in the table.
Section 1926.1411(b)(3) requires the employer to ensure that the
effects of speed and terrain are considered so that those effects do
not cause the minimum clearance distances specified in Table T to be
breached. Sections 1926.1411(b)(1)-(3) are promulgated as proposed.
Section 1926.1411(b)(4) requires the employer to use a dedicated
spotter if any part of the equipment while traveling will get closer
than 20 feet to a power line. This provision also requires that the
dedicated spotter be in continuous contact with the crane operator; be
positioned to effectively gauge the clearance distance; where
necessary, use equipment that enables the spotter to communicate
directly with the crane operator; and give timely information to the
crane operator so that the required clearance distance can be
maintained. See the earlier discussion of spotters in Sec. Sec.
1926.1407 and 1926.1408.
In reviewing proposed Sec. 1926.1411(b)(4), OSHA noted that the
language ``crane operator'' was used rather than ``driver.'' Because
Sec. 1926.1411 deals with power line safety while equipment is
traveling without a load, OSHA recognized that the language ``crane
operator'' may not be appropriate in all situations. In some cases a
crane operator may not be the driver of such equipment on the
construction site. Therefore, OSHA solicited comments on whether the
language ``crane operator'' used in proposed Sec. 1926.1411(b)(4)
should be changed to ``driver'' or ``driver/operator.'' The two
commenters who addressed this issue supported changing the language to
``driver/operator.'' (ID-0205.1; -0213.1.) Therefore, this change to
the regulatory text has been made in the final rule.
Section 1926.1411(b)(5) requires the employer to ensure that, when
traveling at night or in conditions of poor visibility, the power lines
must either be illuminated or another means of identifying them are
used and a safe path of travel is identified. No public comments
concerning this provision were received; therefore, it is promulgated
as proposed.
Section 1926.1412 Inspections
This section seeks to prevent injuries and fatalities caused by
equipment failures by establishing an inspection process that
identifies and addresses safety concerns. The reasoning underlying the
proposed requirements is discussed at 73 FR 59766-59776, Oct. 9, 2008.
The following addresses public comments and differences between the
proposed and final rules.
Paragraphs (a) through (j) of this section provide inspection
requirements for equipment covered by subpart CC. Those requirements
are supplemented by other sections of this standard for specific types
of equipment. This section is structured so that certain activities
(e.g., equipment modification, repair/adjustment, assembly, severe
service, or equipment not in regular use) and the passage of time
(e.g., shift, monthly, and annual/comprehensive) trigger the inspection
requirements.
The proposed rule specified that the various inspections were to be
conducted by either a ``competent person'' or a ``qualified person''
depending on the type of inspection. Both terms are defined in Sec.
1926.01. OSHA solicited public comment on whether a protocol similar to
that for signal person qualifications in Sec. 1926.28 is needed to
ensure that the person who performs these inspections has the requisite
level of expertise (73 FR 59766, Oct. 9, 2008). Section 1926.28
establishes qualification requirements for signal persons and requires
those individuals to have their qualifications evaluated by a qualified
evaluator to act as signal persons under this subpart.
Several commenters responded that there should be a verified
testing system to ensure ``qualified inspectors'' have the requisite
knowledge to inspect effectively or that the standard require
inspectors to demonstrate that ability. (ID-0182.1; -0187.1; -0226.)
Regarding paragraph (f) of this section (annual/comprehensive
inspections of equipment) and Sec. 1926.1413(c) (annual wire rope
inspections), a local government further recommended that OSHA require
that a government agency or a third party crane inspector licensed or
certified by the local government perform the annual inspection. (ID-
0156.1.) The commenter also believed that the individual who inspects
an equipment modification in accordance with paragraph (a) of this
section must possess a certification from the manufacturer or an
independent third party and have the requisite training to inspect
modified, repaired, or altered crane components.
In contrast, a utility company and two trade associations did not
support revising the final rule to include a more stringent inspector
qualification requirement. (ID-0226; -0205.1; -0213.) The two trade
associations expressed concerns that the Committee never discussed the
required level of knowledge of inspection workers, which, in the
commenter's view, means that consensus was not reached on the issue and
that the issue should not be included in the final rule.
[[Page 47968]]
In response to these comments, OSHA is retaining the qualification
requirements for inspectors as specified in the proposed rule but is
not mandating that the inspector be assessed by a qualified evaluator,
certified, or licensed because there is not sufficient evidence in the
record to warrant these additional requirements. A number of current
OSHA construction standards, as did former Sec. 1926.550, require
inspections to be conducted by competent persons or qualified persons.
For example, Sec. 1926.651(k) requires that a competent person conduct
a daily inspection of excavations for possible cave-in hazards. OSHA is
not aware of evidence in the record indicating that accidents would be
prevented if OSHA required inspectors to have additional qualifications
or credentials. OSHA disagrees, and concludes that accidents do not
occur due to the inability of competent or qualified persons to conduct
adequate inspections of cranes under the former standard. Accordingly,
OSHA is retaining the requirement in Sec. 1926.1412 that the various
required inspections be conducted either by competent persons or
qualified persons.
The local government's request that OSHA not preempt local laws and
allow local governments to continue to play a role in crane inspections
is within the scope of the local government's broader preemption
concerns addressed in the discussion of federalism in section V.D of
this preamble. However, OSHA notes that Sec. 1926.1412 would not
preclude local government inspectors or others who are not employees of
the employer responsible for the inspections, from serving as
inspectors in compliance with the requirements of this standard. The
inspector need only meet the definition of a competent or qualified
person in Sec. 1926.1401 (note that a ``competent person'' must have
the authority to take corrective action.)
Paragraph (a) Modified Equipment
Paragraph (a) of this section requires an inspection (that includes
functional testing of the equipment) to be performed by a qualified
person for equipment that has been modified or has additions that
affect the safe operation of the equipment prior to initial use after
that modification/addition.\71\ As proposed, this paragraph did not
contain a documentation requirement. An industrial contractor stated
that the standard should require documentation of this inspection (as
well as the inspections required under paragraphs (b) and (c) of this
section, discussed below) but offered no reasons to support its
suggestion. (ID-0120.) Absent a basis in the record to add such a
requirement, OSHA declines to require documentation of the inspections
under paragraphs (a), (b), and (c).
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\71\ The phrase ``modifications or additions'' and the term
``modifications/additions,'' as used in this section, have the same
meaning (an addition is a type of modification). C-DAC wanted to
emphasize that additions are subject to the same approval procedures
as other types of modifications. Wherever a form of the word
``modification'' is used in this preamble, it is a reference to all
modifications, including additions.
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Proposed Sec. 1926.1412(a)(1)(ii) stated that ``[t]he inspection
shall include functional testing.'' OSHA requested public comment on
whether it should modify the provision to limit the functional testing
requirement to components that the modification affects or may affect
(73 FR 59766-59767, Oct. 9, 2008). Several commenters asserted that
functional testing is only necessary to test modifications of the
equipment and other affected components. (ID-0205; -0213.) In contrast,
a local government asserted that the functional testing should be of
the entire crane. (ID-0156.1.)
OSHA is concerned that there may be instances where a modification
has an unanticipated effect on the equipment that would not become
apparent if the test were limited. Therefore, the Agency has decided to
require a functional test of the equipment as a whole. To make this
clear, the words ``of the equipment'' have been added at the end of the
sentence of the provision in the final rule.
During the SBREFA process, a Small Entity Representative (SER)
suggested adding an exception to Sec. 1926.1412(a) for
``transportation systems,'' by which the SER meant any system
dispersing the weight of the crane for movement on a highway. As
recommended by the Panel, OSHA solicited public comment on whether to
include such an exception and possible language for it (73 FR 59767,
Oct. 9, 2008). No comments were submitted on this point. OSHA notes
that Sec. 1926.1412 specifies the items that must be inspected, and
these items do not include any items dealing with the movement of
equipment on a highway.
Paragraph (b) Repaired/Adjusted Equipment
Paragraph (b) of this section provides that equipment that has had
a repair or adjustment that affects the safe operation of the equipment
must be inspected by a qualified person prior to initial use after the
repair/adjustment. In summary, the qualified person is required to
determine if such repairs and adjustments were performed in accordance
with manufacturer equipment criteria.
Proposed Sec. 1926.1412(b)(1)(iii) stated that ``[t]he inspection
shall include functional testing.'' As in the case of proposed Sec.
1926.1412(a)(1)(ii) discussed above regarding modified equipment, OSHA
requested public comment on whether the functional testing required for
repaired/adjusted equipment should be limited to testing only those
components that are or may be affected by the repair or adjustment (73
FR 59767, Oct. 9, 2008).
Several commenters asserted that functional testing is only
necessary to test the repairs or adjustments and other affected
components and systems of the equipment. (ID-0205; -0213.) In contrast,
one commenter indicated that the functional testing should be of the
entire crane. (ID-0156.)
The standard requires that repairs or adjustments of equipment must
be done in accordance with the manufacturer's or qualified person's
recommendations. Repairs or adjustments are meant to restore equipment
to original design specifications and safety factors. Otherwise, OSHA
considers the maintenance activity performed a modification of the
equipment. In essence, repair or adjustment of a system or component
must be consistent with the engineering in the original equipment
design. OSHA believes that a functional test that is limited to only
those components that are or may be affected by the repair or
adjustment, in conjunction with the inspection required under Sec.
1926.1412(d). Each shift (discussed below), will sufficiently identify
a deficient repair or adjustment. OSHA has therefore modified the
language of Sec. 1926.1412(b)(1)(iii) in the final rule accordingly.
A commenter stated that Sec. 1926.1412(b) should be structured
similarly to Sec. 1926.1434, Modifications, in that the employer
should be required to consult with the manufacturer before employers
perform repairs or adjustments of equipment that relate to safe
operation. (ID-0292.) In that case, the commenter stated, no third
party would be able to overrule a manufacturer statement that a repair
cannot be made. The commenter believed that an employer should only be
able to go to paragraph (b)(1)(ii) if the manufacturer is unavailable.
OSHA does not agree with the suggested change. Implicit in the
comment is the suggestion that there are instances where a repair
cannot be made without compromising the integrity of the equipment.
That concern is already addressed by the standard. If the repair
[[Page 47969]]
cannot meet the criteria in accordance with Sec. 1926.1412(b)(1)(i)
(or, if applicable, Sec. 1926.1412(b)(1)(i)), then the requirements in
subpart CC for modifications would have to be met. Therefore, OSHA
declines to adopt the suggested change.
Paragraph (c) Post-Assembly
Paragraph (c) of this section requires a post-assembly inspection
of equipment by a qualified person prior to its use. In sum, the
provision requires the qualified person to assure that the equipment is
configured in accordance with the manufacturer's equipment criteria. If
manufacturer equipment criteria are unavailable, the qualified person
must determine whether a registered professional engineer (RPE) is
needed to develop criteria for the equipment configuration. If an RPE
is not needed, the employer must ensure that a qualified person
develops them. If an RPE is needed, the employer must ensure that an
RPE develops them. Equipment must not be used until an inspection under
this paragraph demonstrates that the equipment is configured in
accordance with the applicable criteria. OSHA received no comments on
the proposed paragraph; therefore, it is published as proposed.
Paragraph (d) Each Shift
Paragraph (d) of this section requires a shift inspection, the
first of three regularly scheduled equipment inspections that are
required. Specifically, paragraph (d)(1) sets forth the frequency of
this inspection, the degree of scrutiny required and the level of
expertise required of the person performing this inspection. The
paragraph lists the items that are required to be included in this
inspection and specifies the corrective action that is required. The
purpose of this provision is to identify and address safety hazards
before they cause accidents.
A utility company recommended that OSHA revise Sec. 1926.1412(d)
to read ``each shift the equipment is used * * * .'' to clarify that
the equipment does not have to be inspected when it will not be used on
a shift. (ID-0226.) This suggested change is consistent with the intent
of the proposed rule, and OSHA is adding similar language to final rule
Sec. 1926.1412(d)(1) to clarify that intent.
One commenter asserted that OSHA should prohibit operation of the
equipment until the shift inspection is complete rather than permitting
the inspection to be completed during the shift. (ID-0156.1.) A
different commenter disagreed. (ID-0143.) OSHA does not agree with this
suggestion. While some of the items that must be inspected can readily
be inspected before each shift, e.g., cab windows for deficiencies that
would hinder the operator's view, others can best be checked while the
equipment is operating. For example, one item that must be inspected is
control mechanisms for maladjustments that interfere with proper
operation. During the shift, such maladjustments may be easier to
detect than a check conducted before the equipment is operating. Still
others may change during the shift and require additional inspection.
For example, if the crane is moved to a new location during the shift,
it would be necessary to inspect the ground conditions in that
location.
Regarding the frequency of this inspection, an energy utility
representative commented that the per-shift crane inspection fails to
take into account the frequency or severity of use. (ID-0203.1.) The
commenter points out that if a crane is used once during the first
shift, and once during the second shift, even if only to lift a minor
load, the inspection would have to be conducted twice. The commenter
agrees that the per shift inspection may be valuable and necessary on
constructions sites where cranes are used continuously for heavy use,
but states that the level of inspection should be adjusted to reflect
the infrequent use of mobile cranes for construction activities at
operating generating plants. The commenter suggests that the final
standard should permit employers to use the inspection protocol in ASME
B30.5, sec. 5-2.
OSHA does not agree that minimal use during one shift negates the
need for a shift inspection during the next shift. Since the completion
of the last shift inspection, the equipment could have developed a
deficiency or been damaged even if it was used to hoist one load. For
example, fluids may expand or freeze, seals may leak due to a change in
temperature, structural materials may crack, or electrical components
may fail. A deficiency that might not have been apparent earlier might
become more readily observable.
Moreover, while some equipment may be used infrequently for
construction work, the commenter did not disagree that it may be used
heavily for other purposes. When a crack, leak, or other hazard
appears, and the equipment is to be used in construction, the source of
that hazard is immaterial; the fact that the problem may have developed
during non-construction uses does nothing to reduce the safety hazard
that would be posed by the use of that equipment in construction.
Instead, the multiple uses of some of this equipment, potentially by
different employees using it for different purposes, makes it all the
more likely that important information might not be shared in a timely
manner, and therefore more important to ensure that the equipment is
inspected during each shift of construction work. An employer cannot
assume that the condition of the equipment has not changed since the
completion of the last shift inspection, even if the employer did not
use the equipment extensively during that shift. OSHA is convinced that
it is reasonable, and not overly burdensome, to require a competent
person to complete this inspection of the equipment before or during
each shift to ensure it is safe for use.
A competent person is required to perform the shift inspection. A
labor management association commented that OSHA should replace
``competent person'' with ``operator'' for the purposes of who should
perform the visual inspection required by Sec. 1926.1412(d). (ID-
0172.) As explained in the preamble to the proposed rule, OSHA
anticipates that the employer will often use the equipment operator as
the competent person who conducts the shift inspection. The operator,
in most cases, by virtue of his or her qualification or certification
under Sec. Sec. 1926.1427 and 1926.1430, experience, and familiarity
with the equipment, is a competent person. However, the employer has
the flexibility to use someone else to conduct the shift inspection as
long as that person is a competent person. When the operator does not
qualify as a competent person, the employer is required to choose a
different person. For these reasons, in the final rule, OSHA is
retaining the requirement that a competent person conduct the shift
inspection.
A local government requested that the standard require the employer
to document the completion and results of the shift inspection. (ID-
0156.1.) In addition, it asked that the standard require employers to
submit daily logs to the equipment owner at the end of each job that
include a list of maintenance and repairs made to the equipment by the
user at the jobsite. It also requested that the owner maintain these
documents for the life of the equipment and transfer them from owner to
owner when sold.
OSHA determines the documentation described by the commenter would
be burdensome for the user and owner of the equipment, with no added,
industry-recognized, benefit to safe hoisting operations. There is no
significant, safety-related evidence in the record to substantiate the
documentation
[[Page 47970]]
requirements the commenter recommended. Therefore, OSHA is not
requiring documentation of the shift inspection.
The SBREFA Panel recommended that OSHA solicit public comment on
whether, and under what circumstances, booming down should be
specifically excluded as a part of the shift inspection, and whether
the removal of non-hinged inspection plates should be required during
the shift inspection. Section 1926.1413(a)(1), discussed below,
explicitly states that booming down is not required as part of the
shift inspection for wire rope. C-DAC did not include a similar
provision in the general shift inspection provision in Sec.
1926.1412(d) because booming down is not required to observe a
deficiency in any of the items requiring inspection under that
paragraph. Similarly, OSHA determines that inspection for a deficiency
in any of those items does not require the removal of non-hinged
inspection plates.
Several commenters submitted comments that indicated a need for
OSHA to clarify that it is not usually necessary to boom down to
complete a visual inspection of the items listed in Sec. 1926.1412(d).
(ID-0143.1; -0205; -0213.) In response to the apparent ambiguity
suggested indicated by these comments, OSHA is revising Sec.
1926.1412(d)(1), to clarify that booming down is not required
routinely. The term ``disassembly'' was replaced with ``taking apart
equipment component'' in paragraph (d)(1) of this section to avoid any
confusion as to whether the provision was addressing disassembly as
defined for the application of Sec. Sec. 1926.1403 through 1926.1406.
Paragraphs (d)(1)(i) through (xiv) set forth the list of items
that, at a minimum, a competent person must inspect each shift.
Paragraph (d)(1)(x) of the proposed rule listed ``[g]round conditions
around the equipment for proper support, including ground settling
under and around outriggers and supporting foundations, ground water
accumulation, or similar conditions.''
A railroad association objected to the application of this
provision to railroads. (ID-0170.1.) The association commented that the
Sec. 1926.1412(d)(1)(x) requirement that an inspector verify the
ground conditions around the equipment before each shift makes no sense
for a crane moving down the track. OSHA notes that this provision does
not require a railroad to inspect the ground conditions along the track
if a railroad crane is simply traveling down the track. Section
1926.1402, which contains requirements for ground conditions, makes
clear that the conditions being addressed are those where the equipment
is operating. To the extent that a railroad crane may move down the
track during a construction operation, OSHA determines it is
appropriate to require the ground conditions along the track to be
inspected to ensure that no hazardous conditions, such as the erosion
or other physical degradations of the support for railways, have
developed that will adversely affect the support needed for equipment
to perform safely during hoisting operations. However, OSHA is adding
language to exempt railroad tracks and their underlying support from
inspection when those rails are regulated by the FRA. OSHA concludes
that the exemption is appropriate because the FRA already regulates the
ground conditions for railroad tracks, including specific regulations
addressing the inspection of those rails and their support. See, e.g.,
49 CFR 213.233 (track inspections) and 213.237 (inspection of rail).
For consistency and clarity, OSHA is adding similar language exempting
rails regulated by the FRA to paragraph (d)(1)(xiii).
A crane rental company objected to the requirement to inspect
ground conditions, stating that there is no similar provision for
inspecting ground conditions in the elements of inspections required by
ASME B30.5 sec. 5-2.1.2. (ID-0143.1.) It also believes listing this
requirement in the elements for shift inspections is confusing and
suggests that this requirement should either be removed or included in
Sec. 1926.1402, Ground Conditions. As stated in the explanation of the
proposed rule, this item was included because ground conditions can
change from shift to shift, and sufficient ground support is of
critical importance for safety. OSHA is retaining it in this section
because it is more appropriately included in the list of items to be
inspected than as a stand-alone inspection item in Sec. 1926.1402.
In paragraph (d)(1)(x) in the final rule, OSHA is replacing the
word ``outriggers'' with ``outriggers/stabilizers.'' The term
``stabilizers'' was added because some pieces of equipment, like
articulating cranes, are designed to use stabilizers instead of
outriggers to add stability at their bases. A full discussion of the
comments that prompted this regulatory text change is provided in the
explanation of the rule for Sec. 1926.1404(q).
Proposed Sec. 1926.1412(d)(1)(xi) included among the items to be
inspected ``the equipment for level position, both shift and after each
move and setup.'' The SBREFA Panel recommended that OSHA solicit public
comment about whether it is necessary to clarify the requirement of
proposed Sec. 1926.1412(d)(1)(xi) that the equipment be inspected for
``level position'' by clarifying the amount of tolerance that would be
allowed for the equipment to be considered ``level.'' OSHA requested
public comment on this issue and several commenters asked OSHA not to
specify tolerance limits. (ID-0143.1; -0170; -0205; -0213; -0226.) OSHA
notes that Sec. 1926.1402(b), which pertains to ground conditions,
requires the equipment, during use, to be level to the degree specified
by the equipment manufacturer. For clarity, OSHA is adding language to
Sec. 1926.1412(d)(1)(xi) to state that the equipment must be inspected
for level position ``within the tolerances specified by the equipment
manufacturer's recommendations.'' OSHA is also adding the words
``before each'' before shift to clarify the provisions intent.
Paragraphs (d)(2) and (d)(3) require the employer to take
corrective action where the competent person identifies a deficiency
during inspection. Once the inspector identifies any deficiency in the
areas in (d)(1)(i) through (xiii),\72\ or pursuant to other equipment-
specific inspections (e.g., Sec. 1926.1436(p) (inspection of
derricks)), the inspector must immediately determine whether that
deficiency constitutes a safety hazard. If so, then equipment
operations must cease and the employer must take the equipment out of
service, following the tag-out procedure in Sec. 1926.1417(f), and may
not use it again until the deficiency has been corrected. This approach
reflects C-DAC's determination that not all deficiencies constitute
safety hazards. However, regardless of whether the inspector determines
that there is a safety hazard, if any deficiency affects a safety
device or operational aid, then the employer must take the steps
required under Sec. Sec. 1926.1415, Safety Devices, or 1926.1416,
Operational aids.
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\72\ Proposed Sec. 1926.1412(d)(2) inadvertently referred to
deficiencies in paragraphs (d)(1)(i) through (xiv), but the preamble
to the proposed rule explained correctly that it only applied to
deficiencies in paragraphs (d)(1)(i) through (xiii) (not (xiv)) (73
FR 59770, Oct. 9, 2008). The text of paragraph (xiv) addresses
operational aides and safety devices, which are specifically
addressed in paragraph (d)(3). Therefore, in the final paragraph
(d)(2), OSHA refer to deficiencies in ``paragraphs (d)(1)(i) through
(xiii).''
---------------------------------------------------------------------------
OSHA is requiring the procedures in paragraphs (d)(2) and (d)(3) to
ensure that the employer stops using unsafe equipment as soon as the
safety hazard is identified. The correction procedure
[[Page 47971]]
set forth in paragraph (d)(2) is similar to that in ANSI B30.5-1968 and
ASME B30.5-2004 for their Frequent Inspections. OSHA is requiring a
competent person to make the determination to ensure that his or her
findings are implemented; i.e., the competent person would have the
authority to order the equipment out of service if the deficiency
constituted a hazard. In the final rule, OSHA has replaced the phrase
``removed from service'' with ``taken out of service,'' which is the
phrase used in Sec. 1926.1417(f), to avoid any ambiguity about the
employer's duty to tag out the unsafe equipment.
Paragraph (e) Monthly
Paragraph (e) of this section requires a monthly inspection of the
equipment, the second of the three regularly scheduled general
inspections that are required by this standard. The monthly inspection
is identical in coverage and manner to the shift inspection required by
Sec. 1926.1412(d), with one addition discussed below. Thus, the
monthly inspection is a visual inspection of the items listed in the
shift inspection for apparent deficiencies, conducted by a competent
person. However, unlike a shift inspection, the employer must document
the inspection and retain the documentation for a minimum of three
months.
In addition, under the annual/comprehensive inspection in Sec.
1926.1412(f)(4), the employer is required to identify developing
deficiencies that, while not yet safety hazards, need to be monitored.
In such cases the employer, under Sec. Sec. 1926.1412(f)(4) and
(f)(6), is required to monitor them in the monthly inspections.
One commenter suggested adding text to the final rule to clarify
how the monitoring information would be transferred from annual
inspector to monthly inspector, if different. (ID-0226.) The Agency is
not modifying the text of the rule as requested, but notes that under
paragraph (f)(7)(i) of this section the inspector must document all
``items checked and the results of the inspection.'' Therefore, if the
inspector determines that further monitoring is required, that
information would be a ``result of the inspection'' included in the
annual report. The inspector would then be responsible for checking the
annual report prior to monthly inspections (see Sec. 1926.1412(f)(6).)
An industrial contractor commented that OSHA should require
employers to keep monthly inspection documentation for a minimum of
three months or the duration of the project, whichever is longer. (ID-
0120.) This commenter did not, however, describe how expanding the
retention requirement would produce any significant benefit, and OSHA
determines there would be no benefit. The documentation requirement
enables the individuals who use the equipment and conduct shift and
monthly inspections to assess the results of earlier monthly
inspections. Once more than three months have passed since a monthly
inspection, the information in the documentation for that inspection
will not reflect the current condition of the equipment.
The SBREFA Panel recommended that OSHA solicit public comment on
whether the provision for monthly inspections should, like that for
annual inspections, specify who must keep the documentation associated
with monthly inspections. (The provision for annual inspections states
that the documentation must be ``maintained by the employer who
conducts the inspection.'') OSHA requested public comment on the issue
raised by the Panel's recommendation. Several commenters believed that
OSHA should require the employer who conducts the monthly inspection to
maintain the documentation. (ID-0205; -0213; -0214; -0226.)
OSHA agrees that the employer who conducts the monthly inspection
should maintain the documentation. This revision clarifies the intent
of C-DAC and is consistent with other provisions in this section.
A utility company commented that if the operating employer is not
the inspecting employer, the operating employer should be provided with
a copy of the inspection if requested. (ID-0226.) This comment suggests
that some employers who operate rented equipment are concerned that the
required documentation may not be available to them from other parties
unless explicitly required in the regulatory text of this final rule.
In some cases, one employer owns and operates the equipment used to
perform construction activities. It is reasonable to require these
employers to maintain the equipment inspection records. However, during
the analysis of public comments and testimony, OSHA recognized that
there would be situations where an employer rents or uses equipment
owned by another party or where multiple employers use the same piece
of equipment. The standard allows any employer to conduct the monthly
inspection. The employer who conducts the inspection must document the
items checked and the results of the inspection and must retain it for
a minimum of three months. If employers whose employees use the
equipment rely on another employer to conduct, document, and maintain
the record of the monthly inspection, it is the responsibility of each
employer engaged in construction activities to assure compliance with
the standard.
OSHA determines that it is in the interest of all employers who
conduct monthly inspections, whether they use or own equipment, to
share the inspection results with each employer who uses the equipment.
However, employers engaged in construction activities are responsible
for assuring compliance with the standard. Therefore, if an employer
engaged in construction activities is unable to assure that another
employer has conducted the monthly inspection, then the employer
engaged in construction activities must conduct a monthly inspection
prior to using the equipment. The monthly inspection is similar to a
shift inspection (with the addition of the monitoring of deficiencies
that a qualified person deemed not to be a safety hazard in the annual
inspection), but, unlike a shift inspection, the monthly inspection
must be documented and maintained. Requiring an employer who uses the
equipment to conduct a monthly inspection when that employer is unable
to determine whether another employer conducted a monthly inspection is
an insignificant burden compared to the safety benefit of ensuring this
inspection is completed.
The SBREFA Panel also recommended that OSHA restate the corrective
action provisions from the shift inspection (Sec. 1926.1412(d)(2) and
(3)) in paragraph (e) of this section. Under Sec. 1926.1412(e)(1), the
monthly inspection must be conducted in accordance with Sec.
1926.1412(d) on shift inspections, meaning that the corrective action
provisions in Sec. 1926.1412(d)(2) and (3) must also be followed in
the monthly inspections. OSHA requested comment on whether the language
in Sec. 1926.1412(d)(2) and (3) should be repeated under Sec.
1926.1412(e). Two trade associations believed that clarity would be
improved if paragraph (e) of this subpart repeated the corrective
actions provisions from the shift inspection paragraph. (ID-0205; -
0213.) OSHA disagrees because Sec. 1926.1412(e)(1) explicitly requires
this inspection to be done in accordance with Sec. 1926.1412(d).
Paragraph (d) immediately precedes paragraph (e), and OSHA concludes
that repeating the provisions will create, rather than alleviate,
confusion by requiring employers to read two lists that contain
identical information.
[[Page 47972]]
Paragraph (f) Annual/Comprehensive
Paragraph (f) of this section requires an annual (i.e., once every
twelve months), general inspection of the equipment, the third of the
three regularly scheduled general inspections that are required by this
standard. It promotes safety by ensuring that a thorough, comprehensive
inspection of the equipment is performed to detect and address
deficiencies that might not be detected in the shift and monthly
inspections.
Under paragraph (f)(1), a qualified person must inspect the
equipment. The Committee specified a qualified person because the items
required in the shift inspection must be examined more thoroughly than
during the shift or monthly inspections. The Committee, determined, and
OSHA agrees, that the higher level of expertise of a qualified person
would help to ensure that the inspector was able to identify
deficiencies necessitating a greater degree of scrutiny than what would
be required in the shift inspection; for example, a deficiency that is
not apparent in a visual inspection but is detectable through taking
apart equipment components. The Committee's decision to require a
qualified person is consistent with COE-EM 385-1-1 (3 Nov 03) and ASME
B30.5-2004, both of which call for a qualified person to perform those
standards' ``periodic'' inspections.
OSHA notes that Sec. 1926.1412(f) does not specify the level of
scrutiny for the annual/comprehensive inspection. In drafting the
proposed rule, OHSA determined that C-DAC intended for this inspection
to be more thorough than the visual inspection for apparent
deficiencies required of the shift and monthly inspections. OSHA
therefore solicited comments from the public as to whether language
specifying a higher level of scrutiny (for example, ``thorough,
including disassembly when necessary'') should be added.
A railroad equipment supplier commented that this section does not
additionally burden employers if it requires them to open covers to
inspect for safety defects that could cause an incident or death. (ID-
0124.) Therefore, they were in support of adding stronger language to
paragraph (f) of this section to emphasize some disassembly is
necessary to complete a thorough inspection of the equipment. In
contrast, two trade associations believed that no additional language
was need in the regulatory text to specify that a higher level of
scrutiny is needed during an annual inspection. (ID-0205.1; -0213.)
OSHA determines that some disassembly of the equipment will be
needed for the qualified person to complete the inspection. Therefore,
OSHA has revised Sec. 1926.1412(f)(2) accordingly.
The proposed rule did not require the individual who conducts the
annual inspection to review any documentation related to the crane
prior to or during the inspection. A labor representative suggested two
types of documentation they believe the qualified person should review
when conducting an annual inspection. (ID-0182.1.) First, the commenter
wanted OSHA to include a requirement in paragraph (f) of this section
that the inspector contact the manufacturer for any relevant
information the manufacturer may have about the equipment. The
commenter explains that the manufacturer may have information about
recently discovered defects or deficiencies in the equipment or have
recommended modification, which inspectors should take into account
when performing the annual inspection.
Second, the commenter recommended that OSHA require the inspector
to review all available information regarding the history of the piece
of equipment. This information would include annual or periodic
inspection reports, which would describe previously discovered defects
or previously made modifications, to which the inspector should pay
particular attention while conducting a comprehensive inspection. OSHA
declines to impose the requirements suggested by the commenter because
the Agency does not agree they would lead to better inspections. The
annual inspection requirements are designed to ensure that the
inspector thoroughly scrutinizes and evaluates the current condition of
critical components of the equipment. Reviewing the maintenance history
of the equipment will not further the value of this inspection, for
defects previously discovered should have been repaired and defects not
present in the past may now exist. For example, if a part such as a
ball bearing is replaced with a new part, there is no reason to expect
that the bearing will fail. To the contrary, the brand new part is less
likely to fail than another ball bearing that has been subjected to
heavy use for years. OSHA determines that the inspection will be more
valuable if the inspector concentrates on thoroughly inspecting the
items listed in the rule to determine whether they currently present
any safety defects. Similarly, OSHA is not convinced that contacting
the manufacturer will yield valuable information that will advance the
annual inspection. OSHA determines that important safety information
about their products is provided voluntarily by manufacturers to their
customers and that a requirement to contact them each year is not
likely to yield any further information of value.
Paragraphs (f)(2)(i) through (xxi) specify the parts of the
equipment and the conditions the inspector must look for during the
annual inspection. The Committee developed this list based on the
members' experience and current industry practice as reflected in
current consensus standards for annual/periodic inspections. The
Committee concluded that each item plays an important role in the safe
operation of equipment. Only a few of these items require discussion.
Proposed paragraph (f)(2)(xiv) listed ``[o]utrigger pads/floats''
for excessive wear or cracks.'' The purpose of the inspection of
outrigger pads/floats is to make certain that these pads (which are
attached to the outrigger and used to distribute the weight of the load
to the ground) will not fail and leave the outrigger without proper
support. In the final rule, OSHA is referring to ``outrigger or
stabilizer pads/floats'' because some types of equipment, such as
articulating cranes, are designed to use stabilizers instead of
outriggers to add stability at their bases. A full discussion of the
comments that prompted this regulatory text change is provided in the
explanation of the rule for Sec. 1926.1404(q).
Proposed paragraph (f)(2)(xv) listed ``slider pads for excessive
wear or cracks.'' The word ``cracks'' had not been included in the C-
DAC Consensus Document for this item, and two trade associations (ID-
0205.1; -0213.1) commented that ``cracks'' should be removed from the
provision to be consistent with the intent of C-DAC. After examining
how the word came to be included in the proposed rule, OSHA concludes
that the word ``cracks'' was added inadvertently to this provision and,
lacking an evidentiary basis to include it, is removing the words ``or
cracks'' from paragraph (f)(2)(xv) in the final rule.
Section 1926.1412(f)(2)(xviii) has been modified from the proposed
rule. Upon review of this requirement, the Agency found that it was
necessary to clarify this requirement to allow the use of a seat that
is equivalent to the original operator's seat. This provision requires
the employer to replace the original seat with one that provides
function and safety that is equivalent to the original seat. The text
of the final rule has been modified accordingly.
In Sec. 1926.1412(f)(2)(xix) the term ``unserviceable'' is
replacing the term
[[Page 47973]]
``unusable'' to clarify that the operator's seat must be in good
working condition to allow the operator to safely work at the controls
of the equipment. The text of the final rule has been modified
accordingly.
Paragraph (f)(3) requires functional testing as part of the annual/
comprehensive inspection. No comments were received on this provision.
Paragraphs (f)(4) through (6) delineate the follow-up procedures
that apply when a deficiency is identified during the annual/
comprehensive inspection. The purpose of these provisions is to ensure
that a deficiency that is not yet a safety hazard but may develop into
one is monitored on a monthly basis, and that a deficiency that is a
safety hazard is corrected before the equipment is returned to service.
Paragraph (f)(4) provides that immediately following the
identification of a deficiency, the qualified person must determine
``whether the deficiency constitutes a safety hazard, or though not yet
a safety hazard, needs to be monitored in the monthly inspections.'' No
comments were received and paragraph (f)(4) is promulgated as proposed.
Paragraph (f)(5) requires that equipment with a deficiency
identified as a safety hazard by the qualified person be removed from
service until the deficiency is corrected. Paragraph (f)(6) requires
the employer to check the deficiencies in the monthly inspections that
the qualified person had identified as needing monitoring.
In the proposed rule, OSHA discussed an apparent conflict between
Sec. 1926.1412(f)(4) and Sec. 1926.1416. Paragraph (f)(2)(v) lists
operational aids among the items that must be included in the annual
inspection.\73\ Section 1926.1416 permits equipment with operational
aids that are not functioning properly to continue to be used for
limited periods of time as long as specified alternative measures are
used while the operational aids are being repaired. By contrast, under
Sec. 1926.1412(f)(4), if any deficiency is identified in the annual
inspection, the qualified person must make an immediate determination
as to whether the deficiency constitutes a safety hazard. If it does,
under Sec. 1926.1412(f)(4), the equipment must be removed from service
immediately. OSHA requested public comment on whether Sec.
1926.1412(f)(4) should explicitly provide that the corrective action in
Sec. 1926.1416 applies if an operational aid is found to be
malfunctioning during an annual inspection. Two trade associations
agreed that Sec. 1926.1412(f) should state that the corrective action
required for malfunctioning operational aids is that specified in Sec.
1926.1416. (ID-0205.1; -0213.1.) OSHA also notes that Sec.
1926.1435(e) specifies the temporary alternative measures that must be
implemented when operational aids on tower cranes malfunction, and
Sec. 1926.1412(f)(5) applies to tower cranes as well as equipment
covered by Sec. 1926.1416. Paragraph (f)(5) of the final rule is
modified accordingly.
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\73\ Paragraph (f)(2)(v), as proposed and in the final rule,
distinguishes between deficiencies that result in ``significant
inaccuracies'' in the operation of any of the safety devices or
operational aides, and those that do not. The phrase ``significant
inaccuracies'' reflects the fact that such devices normally operate
within a tolerance range. Corrective actions are not required if the
inaccuracy is so small as to be irrelevant regarding the safe
operation of the equipment. In contrast, significant inaccuracies in
these devices could mislead the operator and contribute to actions
that could result in the equipment being inadvertently used in an
unsafe manner.
---------------------------------------------------------------------------
Moreover, OSHA is adding text to paragraph (f)(1) of this section
to emphasize that paragraphs (d)(2) and (d)(3) of this section do not
apply to annual inspections.
Paragraph (f)(7), Documentation of annual/comprehensive inspection,
requires the employer that conducts the inspection to complete and
maintain, for a minimum of twelve months, documentation that contains
``[t]he items checked and the results of the inspection,'' and ``[t]he
name and signature of the person who conducted the inspection and the
date of the inspection.'' Section 1926.1413(c)(4), which pertains to
the annual/comprehensive wire rope inspection, contains a similar
documentation requirement. In the proposed rule, the 12-month retention
requirement was located in paragraph (f)(7)(iii). OSHA has incorporated
that requirement into the introductory sentence to clarify that it is
the employer who conducts the inspection who must retain the documents
for 12 months. OSHA has also clarified that the date of the inspection,
not the date on which the document was signed, must be entered on the
document.
During the SBREFA process, several Small Entity Representatives
objected to the requirement for documentation of monthly and annual
inspections, stating that such documentation would be unduly burdensome
and would not, in their opinions, add to worker safety. The Panel
recommended that OSHA solicit public comment on the extent of
inspection documentation the rule should require. OSHA requested
comment on this issue.
A local government supported annual/comprehensive inspection
documentation. (ID-0156.) It also commented that daily logs should be
maintained and submitted to the crane owner to capture when maintenance
has been performed on the equipment, and maintained by the equipment
owner for the life of the crane. This commenter did not, however,
explain how such a retention requirement would produce safety benefits,
and OSHA declines to adopt it.
The Committee determined that the documentation of the annual
inspection, signed by the person who conducted the inspection and
retained for 12 months, would have several effects. First, it would
increase the likelihood that more employers would implement systems for
conducting and responding to inspections. Second, the failure to do so
would be more readily apparent if a record was not made, and the
signature of the person who conducted the inspection would be an
inducement to that person to ensure that the inspection was done
correctly.
The Agency notes that the three month retention period reflects the
Committee's decision to have a retention period that is consistent with
Department of Transportation truck inspection documentation
requirements.
The documentation of these inspections serves as references that
inspectors can use to monitor the condition of items critical to the
safe operation of the equipment. It has been a longstanding industry
practice to maintain annual inspection documentation as a reference
that the inspection was completed, to identify who performed the
inspections, and to document the results of that inspection.
Paragraph (g) Severe Service
Paragraph (g) of this section requires the employer to inspect the
equipment when the severity of use/conditions--``such as loading that
may have exceeded rated capacity, shock loading that may have exceeded
rated capacity, [or] prolonged exposure to a corrosive atmosphere''--
creates a ``reasonable probability of damage or excessive wear.'' In
such instances, the employer is required to stop using the equipment
and have a qualified person ``inspect the equipment for structural
damage;'' determine whether, in light of the use/conditions of the
severe service, any items listed in the annual/comprehensive inspection
need to be inspected and if so, inspect them; and if a deficiency is
found, follow the correction/monitoring procedures set forth in Sec.
1926.1412(f)(4)-(f)(6).
Upon review of this paragraph, the Agency determines that
[[Page 47974]]
Sec. 1926.1412(g)(1) needs clarification; therefore, OSHA added a
phrase to the provision requiring that a determination be made to
ensure the equipment remains safe for continued use. This revision
emphasizes that this inspection must determine the capability of the
equipment to operate continuously under severe conditions. No comments
were received on this paragraph, and it is promulgated as proposed,
with the exception of the clarification to Sec. 1926.1412(g)(1).
Paragraph (h) Equipment Not in Regular Use
Paragraph (h) of this section requires that equipment that sits
idle for three months or more be inspected by a qualified person in
accordance with the monthly inspection provisions of Sec. 1926.1412(e)
before being used. This would ensure that deficiencies that may arise
as a result of the equipment standing idle are checked before its
subsequent use. The Committee determined that this inspection would
need to be done by a qualified person, rather than a competent person,
because some of the deficiencies that may arise from sitting idle
require the qualified person's higher level of ability to detect and
assess. (See further discussion at 73 FR 59775, Oct. 9, 2008.) No
comments were received on this paragraph. It is promulgated as
proposed.
Paragraph (i) [Reserved]
Paragraph (j)
Proposed paragraph (j) of this section required that any part of a
manufacturer's inspection procedures relating to safe operation that is
more comprehensive or has a more frequent schedule than that required
by this section must be followed. These inspection procedures include
any information provided by the manufacturer. Examples are provided in
the provision of the types of items that would be considered to relate
to safe operation (``a safety device or operator aid, critical part of
a control system, power plant, braking system, load-sustaining
structural components, load hook, or in-use operating mechanism''). The
proposed paragraph goes on to state: ``Additional documentation
requirements by the manufacturer are not required.''
Several commenters asked that OSHA delete the line in the
regulatory text of Sec. 1926.1412(j) that reads ``Additional
manufacturer documentation requirements need not be followed.'' (ID-
0165; -0232; -0235.) OSHA acknowledges that the intent of this sentence
is unclear and is not including it in the final rule.
A safety association and a trade association commented that the
thorough and equipment-specific frequency of inspections required by
the manufacturer are well suited for the equipment used in their
trades. (ID-0184; -0206.) The safety association asserted that
compliance with equipment manufacturers' inspection recommendations
assure a greater degree of safety than compliance with a list of shift,
monthly, and annual inspections, which may be deficient with regard to
thoroughness and frequency. The two commenters asked that OSHA revise
Sec. 1926.1412 to allow employer-documented compliance with the
inspection recommendations of the equipment manufacturer as an
alternative to meeting the requirements of Sec. 1926.1412.
OSHA agrees with the commenters that manufacturer's equipment-
specific inspection requirements can help promote safety. For this
reason, Sec. 1926.1412(j) provides that any additional inspection
requirements recommended by the manufacturer must be followed by
employers. However, OSHA does not agree with the commenters regarding
their assessment that the minimum inspection requirements and schedules
specified in Sec. 1926.1412 are more burdensome for employers who use
articulating lifting equipment in particular. There is no evidence in
the record that inspections recommended by manufacturers are as
thorough as those provided in this section. To the extent that they
are, there is no additional burden to employers in requiring them to
follow this section than to follow the manufacturer's recommendations.
Paragraph (k)
OSHA determines that the competent person or persons who conduct
shift and monthly inspections, and the qualified person who conducts
annual inspections, must have access to all written documents produced
under this section, during the time for which the employer is required
to retain those documents, so that they are made aware of any
components of the equipment that may require special attention during
their inspections. Accordingly, OSHA is adding a new paragraph (k) at
the end of Sec. 1926.1412.
Section 1926.1413 Wire Rope--Inspection
Cranes and derricks use wire rope to lift and support their loads
and parts of the equipment. If the rope is worn or damaged, it can
break, causing the equipment to fail and/or the load to fall, which can
kill or injure workers. Approximately 3% of crane fatalities in
construction work result from wire ropes snapping. J.E. Beavers et al,
Crane-Related Fatalities in the Construction Industry, 132 Journal of
Construction Engineering and Management 901, 903 (Sept. 2006). (ID-
0011.) Accordingly, C-DAC concluded it would improve crane/derrick
safety to establish updated requirements for wire rope inspections.
The definition C-DAC developed for proposed Sec. 1926.1401 defined
``wire rope'' as ``rope made of wire.'' In the preamble of the proposed
rule, OSHA noted that this definition could be read to exclude rope
made with a fiber core, which, as discussed below under Sec.
1926.1414, may be used for purposes other than boom hoist reeving. OSHA
requested public comment on whether a more appropriate definition would
be the following one used by the Specialized Carriers & Rigging
Association:
A flexible rope constructed by laying steel wires into various
patterns of multi-wired strands around a core system to produce a
helically wound rope.
(73 FR 59739, Oct. 9, 2008.) Three commenters supported this revised
definition, and none were opposed. (ID-0187.1; -0205.1; -0213.1.)
Accordingly, OSHA is revising the definition in Sec. 1926.1401 to that
quoted above.
One of the commenters supporting the revised definition also stated
that OSHA should not exclude wire rope with a synthetic or fiber core
and should include definitions of these terms. (ID-0187.1.) However, as
OSHA explained in the proposed rule, the revised definition is designed
to encompass cores other than wire, and OSHA determines it is not
necessary to include separate definitions for each type of such rope to
make clear that they fall within the definition of ``wire rope.''
The proposed rule provided for wire rope inspections at the same
frequency--shift, monthly, and annually--that would apply for other
crane components under Sec. 1926.1412. It also proposed that, like
inspections of other components, the shift and monthly inspections be
conducted by a ``competent person,'' and the annual inspection by a
``qualified person.'' As discussed below, OSHA is retaining this
equivalence of frequency and qualifications in the final rule.
Paragraph (a) Shift Inspection
Paragraph (a)(1) of this section of the proposed rule required a
shift
[[Page 47975]]
inspection by a competent person. One commenter recommended that this
provision require the shift inspection to be conducted ``each shift the
equipment is used'' rather than ``each shift,'' to clarify that the
equipment does not have to be inspected when it will not be used on a
shift. (ID-0226.0.) This suggested change is consistent with the intent
of the proposed rule, and OSHA is adding similar language to Sec.
1926.1413(a)(1) to clarify that intent.
Another commenter stated that it was unnecessary to require a wire
rope inspection each shift. (ID-0203.1.) This commenter believed that
per-shift wire rope inspections were an unnecessary burden for
employers with good maintenance programs who have not experienced wire
rope failures. The commenter recommended that OSHA adopt the protocol
in sec. 5-2.4 of ASME B30.5-2004, which allows the periodic inspection
frequency to be determined by a qualified person based on factors that
affect rope life.
OSHA rejects this commenter's suggestion which could, at a
qualified person's discretion, result in less frequent wire rope
inspections than were required under former subpart N. Section 5-2.4.1
of ANSI B30.5-1968, which was incorporated by reference in subpart N,
provided for wire rope inspections ``once each working day.'' The
current version of B30.5, in sec. 5-2.4.2(a) of ASME B30.5-2004,
similarly provides for daily wire rope inspections. The commenter's
reference to the provision in ASME B 30.5-2004 that allows the
inspection frequency to be determined by a qualified person refers to
the type of comprehensive inspection that is similar to the annual
inspection required by Sec. 1926.1413(c), not to the shift inspections
required under Sec. 1926.1413(a).
As discussed below, the purpose of this inspection is to ensure
that deficiencies are identified and that, depending on the competent
person's evaluation of those deficiencies, appropriate action is taken.
C-DAC wanted to make clear, however, that the inspection was not to be
so comprehensive and time-consuming that it would be unrealistic to
conduct it for each shift. To clarify that the inspection was one that
was reasonable for a shift inspection, the provision states that
neither ``untwisting (opening of wire rope)'' nor ``booming down'' is
required during this inspection. OSHA believes that requiring a
realistic level of inspection each shift will encourage compliance and
ultimately serve to reduce accidents. No comments were received on this
aspect of the proposed rule.
Proposed Sec. 1926.1413(a)(1) referred to wire ropes (running and
standing) that are ``reasonably likely'' to be in use during the shift.
OSHA is also removing the word ``reasonably'' to avoid ambiguity.
Accordingly, Sec. 1926.1413(a)(1) is promulgated as proposed except
for the minor changes noted above.
Paragraph (a)(2) Apparent Deficiencies
Paragraph (a)(1) of this section requires the competent person to
conduct a ``visual inspection * * * for apparent deficiencies,
including those listed in paragraph (a)(2).'' Proposed paragraph (a)(2)
established three categories (I, II, and III) of apparent wire rope
deficiencies. The likelihood that a deficiency is hazardous increases
as the number of the category increases from I to III. The basis for
categorizing apparent deficiencies in this way was discussed in detail
in the proposed rule (73 FR 59776-59777, Oct. 9, 2008). As discussed
further below, the category determines the options or ``next steps''
available to or required of the employer under paragraph (a)(4),
Removal from service.
The Agency is providing minor clarifications for the two apparent
deficiencies that relate to damage from electricity. As proposed,
paragraph (a)(2)(i)(C) read: ``Electric arc (from a source other than
power lines) or heat damage.'' C-DAC intended that both ``electric
arc'' and ``heat'' would modify ``damage.'' To make this more clear,
OSHA is adding the word ``damage'' after ``electric arc.'' Proposed
paragraph (a)(2)(iii)(B) read: ``Electrical contact with a power
line.'' OSHA is adding the word ``prior'' at the beginning of the
paragraph to clarify that the inspector must note a deficiency whenever
he or she is aware, through observation or from any other information,
that the wire rope has previously made electrical contact with a power
line.
OSHA notes that a wire rope can be damaged in two ways from
electrical contact. First, if the source of electrical power contacts
the wire rope, the electricity can arc to the wire rope and cause a
localized burn. The extent of the damage will depend on the amount of
electrical energy involved. A low energy arc will typically cause
little damage; a high energy arc may cause significant damage. When the
arc results from a source other than a power line, the extent of the
damage will vary, and the inspector must determine whether the rope is
damaged to the extent that repair or replacement is necessary.
If a power line arcs to a wire rope, there will usually be
sufficient localized burn damage that the rope must be removed from
service. However, a wire rope may make electrical contact with a power
line and leave no visible damage. For example, if the load contacts a
power line and is not insulated from the wire rope, a large current can
flow through the rope. The current may be large enough to damage the
internal structure of the rope and weaken it without leaving any
visible evidence on the rope itself that this has happened. There is no
realistic way to assess the internal damage that such electrical
contact has caused to the wire rope. Therefore, C-DAC determined that
any wire rope that came into electrical contact with a power line must
be removed from service.
Only one comment was submitted regarding proposed paragraph (a)(2).
The commenter suggested adding two additional conditions to the list of
Category II deficiencies. (ID-0121.1.) The first is where one outer
wire is broken at the point of contact with the core of the rope and
protrudes or loops out from the rope structure. The second is where one
outer wire is broken at the strand to strand contact point and is
raised up from the body of the rope or looped out of the rope
structure.
OSHA disagrees with the commenter because this commenter did not
offer any rationale to justify these additional provisions. Therefore,
OSHA is deferring to the expertise of the Committee. Section
1926.1413(a)(2) is promulgated as proposed except for the
clarifications noted above.
A ``running wire rope'' is a wire rope that moves over sheaves or
drums. This definition is included in Sec. 1926.1401 of this final
rule to make clear the nature of the wire rope that is subject to this
inspection provision. These criteria are the same as those contained in
sec. 5-2.4.3 of ASME B30.5-2004, and those for running wire ropes and
pendant or standing wire ropes are also contained in sec. 5-2.4.2 of
ANSI B30.5-1968, which is incorporated by reference in subpart N. One
issue that was left unanswered during the Committee discussions is
whether these broken wire criteria are equally applicable when using
plastic sheaves. The Agency requested public comment on this issue.
However, no comments were received. OSHA notes that the proposed broken
wire criteria did not depend on the type of sheave involved and would
therefore include plastic as well as metal sheaves. Since the paragraph
is being promulgated as proposed, the criteria apply regardless of the
material of which the sheave is made.
[[Page 47976]]
Paragraph (a)(3) Critical Review Items
Under paragraph (a)(3) of this section, the competent person must
give particular attention to certain ``Critical Review Items'' during
the shift inspection (as well as, as discussed below, in the monthly
and annual inspections). Proposed paragraph (a)(3)(iii) listed, among
the critical review items, ``wire rope at flange points, [and]
crossover points.'' These terms were defined in proposed Sec.
1926.1401, Definitions.
One commenter suggested that each wrap of the rope is a crossover
point such that the crossover points will line up across the face of
the drum. (ID-0121.) The Agency disagrees with this view. As defined in
the standard, a crossover point occurs ``where one layer of rope climbs
up and crosses over the previous layer * * *.'' While the rope climbs
up at the drum's flange, it does not climb up as it then spools across
the previous (lower) layer towards the other flange, i.e., as it wraps
across the face of the drum.
In the proposed rule, OSHA noted that the items listed in
Sec. Sec. 1926.1413(a)(3)(iv) and (a)(3)(v) (``Wire rope adjacent to
end connections'' and ``Wire rope at and on equalizer sheaves'') are
functionally equivalent to items requiring special scrutiny during the
annual inspections required in proposed Sec. Sec.
1926.1413(c)(2)(ii)(C) and (F) (``Wire rope in contact with saddles,
equalizer sheaves or other sheaves where rope travel is limited'' and
``Wire rope at or near terminal ends''). The Agency stated that it
planned to revise the language in proposed Sec. Sec.
1926.1413(a)(3)(iv) and (a)(3)(v) to match the language in Sec. Sec.
1926.1413(c)(2)(ii)(C) and (c)(2)(ii)(F). This would enable OSHA to
delete Sec. Sec. 1926.1413(c)(2)(ii)(C) and (c)(2)(ii)(F) because
Sec. 1926.1413(c)(2)(ii)(A) incorporates by reference the critical
review items listed in Sec. Sec. 1926.1413(a)(3)(iv) and (a)(3)(v),
thereby making the items listed in Sec. Sec. 1926.1413(c)(2)(ii)(C)
and (c)(2)(ii)(F) redundant. OSHA did not receive any adverse comment
on modifying Sec. Sec. 1926.1413(a)(3)(iv) and (a)(3)(v) in this
manner and modified Sec. 1926.1413(a)(3) accordingly.
Paragraph (a)(4) Removal From Service
Paragraph (a)(4) of this section of the proposed rule set out
remedial steps to be taken once the competent person performing the
inspection identifies an apparent deficiency. Those steps depended upon
whether, under Sec. 1926.1413(a)(2), the deficiency falls under
Category I, II, or III. Under this approach, immediate removal from
service would be required for certain deficiencies, while continued use
under prescribed circumstances would be allowed for others before the
rope must be removed from service. When removal from service is
required, the provisions of Sec. 1926.1417 (Operation) apply, and the
inspector must either tag out the entire equipment or the hoist with
the damaged wire rope. This approach was adopted by C-DAC because, in
the Committee's collective experience, different types of deficiencies
warrant different responses, with some deficiencies being so serious
that continued use of the rope must be prohibited while other
deficiencies may, if adequately evaluated and monitored, allow
continued use of the rope for a limited time.
Paragraph (a)(4)(i) applies to Category I apparent deficiencies.
Paragraph (a)(4)(i)(B) allows the rope to be severed under some
circumstances and the undamaged part to be used. Two commenters
suggested that language be added to require the user to verify that the
drum will still have at least two wraps of rope around it when the
block is lowered to its lowest position. (ID-0122; -0178.1.) The
concern of these commenters is that shortening the rope too much might
not leave enough rope to allow a sufficient margin of safety (two
wraps) to remain on the drum and prevent the rope from becoming
disconnected from the drum.
Another provision of the final rule, Sec. 1926.1417(t), addresses
this potential safety hazard by requiring that neither the load nor the
boom be lowered below the point where less than two full wraps of rope
remain on their respective drums. Normally, newly installed ropes are
long enough to ensure compliance with Sec. 1926.1417(t) when the load
or boom are in their lowest positions, and these commenters are
concerned that shortening the rope could result in the rope becoming
disconnected if the remaining part of the rope is not long enough to
always ensure that two wraps remain on the drum.
OSHA agrees with this comment and is adding language to paragraph
(a)(4)(i)(B) (and also to paragraphs (a)(4)(iii)(B) and (c)(3)(i)(B) of
this section, which contain a similar provision) to specify that if a
wire rope is shortened under this paragraph, the employer is required
to ensure that the drum will still have two wraps of wire rope when the
load and/or boom is in its lowest position.
OSHA also notes that paragraph (a)(4)(i)(B) twice refers to power
line contact in the phrases ``other than power line contact'' and
``repair of wire rope that contacted an energized power line is also
prohibited.'' OSHA is concerned that these phrases could be misleading
in a paragraph devoted to remedial steps for a Category I deficiency,
as power line contact can never be a Category I deficiency. It is a
Category III deficiency that requires immediate replacement of the
rope. To avoid any implication that power line contact could be a
Category I deficiency and that a competent person could determine that
the rope does not constitute a safety hazard under paragraph (a)(4)(i),
OSHA is deleting the words in proposed paragraph (a)(4)(i)(B) referring
to power line contact.
Paragraph (a)(4)(ii) applies to Category II apparent deficiencies.
In paragraph (a)(4)(ii)(A), OSHA is removing the references to safety
hazards to make it clear that utilization of this option (compliance
with manufacturer requirements) mandates removal of the rope from
service whenever the manufacturer's criteria for removal from service
are met, without the employer making an independent determination as to
whether the rope is a safety hazard.
Paragraphs (a)(4)(ii)(B) and (C) allow the employer the option of
either removing the wire rope from service or to implement the measures
as described in paragraph (a)(4)(i)(B) above. In addition, OSHA is
adding a cross-reference to Sec. 1926.1417 (Operation), which includes
a number of separate requirements that are triggered if the equipment
is taken out of service.
The proposed rule would have allowed Category II wire-rope
deficiencies \74\ to remain in service up to 30 days when using
specified alternative measures. Under former subpart N, these
deficiencies would have resulted in removing the wire rope immediately
from service. However, OSHA relied on C-DAC's expertise and proposed
the provision as recommended by the Committee.
---------------------------------------------------------------------------
\74\ These measures were proposed at Sec. Sec.
1926.1413(a)(4)(ii)(B) and 1926.1413(a)(4)(iii).
---------------------------------------------------------------------------
The Agency received comments regarding the alternative measures
proposed for Category II wire-rope deficiencies from three commenters.
All of the commenters objected to allowing continued use of wire rope
with Category II deficiencies. Two of the commenters stated that the
proposed option to continue using wire rope with the proposed
alternative measures relaxed both national consensus standards and the
instructions of wire rope manufacturers. (ID-0122.0; -0178.1.) They
believed allowing the employer to use the damaged wire rope in service
up to 30 days was a
[[Page 47977]]
dangerous precedent because it based employee protection on conditions
that could be difficult for a qualified person to assess accurately.
The third commenter (a crane manufacturer), which had a
representative on C-DAC, also objected to the continued use of wire
rope with Category II deficiencies. (ID-0292.1.) This commenter noted
that such deficiencies indicate that the wire rope does not meet the
``acceptable life'' criteria accepted by the wire-rope industry.
Further, the commenter noted that, if the wire rope continued to be
used with the Category II deficiencies, ``failure could occur without
further indication.''
OSHA finds these comments persuasive with respect to the protection
of employee safety. The integrity of the wire rope is critical to the
safety of any lift performed by equipment covered by this subpart. For
example, a break in the rope can result in a dropped load which
endangers employees on the worksite. Based on these comments and the
requirements of former subpart N, OSHA is changing the requirements in
the final rule for wire rope with Category II deficiencies. The Agency
notes that this revision is consistent with the requirements of former
subpart N. Accordingly, the alternative measures outlined in the
proposed rule at Sec. 1926.1413(a)(4)(iii) have been deleted and
subsequent paragraphs renumbered.
Paragraph (a)(4)(iii) \75\ applies to Category III apparent
deficiencies. Two commenters suggested that Category III is unnecessary
because paragraph (a)(4)(iv)(B) is the same as for Category I. (ID-
0122; -0178.1.) As noted above, the corresponding proposed provision
for Category I, paragraph (a)(4)(i)(B), is being changed to remove the
references to power line contact. Moreover, Category III differs from
Category I because the competent person may decide that rope with a
Category I deficiency does not constitute a safety hazard and allow the
rope to continue to be used. However, rope with a Category III
deficiency must either be replaced or, if the deficiency is localized
and did not result from power line contact, be severed and the
undamaged part to be used.
---------------------------------------------------------------------------
\75\ This was Sec. 1926.1413(a)(4)(iv) in the proposed rule (73
FR 59930, Oct. 9, 2008).
---------------------------------------------------------------------------
As discussed above in relation to paragraph (a)(4)(i)(B), OSHA is
changing paragraph (a)(4)(iii)(B) \76\ to state that, if the rope is
severed and the undamaged portion used, the rope in use must be long
enough to ensure that two full wraps remain on the drum at all times.
---------------------------------------------------------------------------
\76\ This was Sec. 1926.1413(a)(4)(iv)(B) in the proposed rule
(73 FR 59930, Oct. 9, 2008).
---------------------------------------------------------------------------
Proposed paragraph (a)(4)(iv) \77\ specified that where a wire rope
must be removed from service under this section, the equipment (as a
whole) or the hoist with that wire rope must be tagged-out as provided
in proposed Sec. 1926.1417(f)(1) until the wire rope is replaced or
repaired. No comments were received on this provision, and it is being
promulgated as proposed.
---------------------------------------------------------------------------
\77\ This was Sec. 1926.1413(a)(4)(v) in the proposed rule (73
FR 59930, Oct. 9, 2008).
---------------------------------------------------------------------------
A commenter suggested adding that the competent person who conducts
the shift inspection must receive such information in writing. (ID-
0132.1.) OSHA concludes that the competent person or persons who
conduct shift and monthly inspections, and the qualified person who
conducts annual inspections, must have access to all written documents
produced under this section so that they are made aware of any
components of the equipment that may require special attention during
their inspections.
Accordingly, OSHA is adding a new paragraph (e) at the end of Sec.
1926.1413 that specifies that all documents produced under this section
must be available to all persons who conduct inspections under this
section.
Paragraph (b) Monthly Inspection
Proposed paragraph (b) required a monthly inspection of wire rope
that would be, in both the level of scrutiny and the expertise required
of the inspector, a documented shift inspection.
A commenter pointed out that paragraph (c)(3)(ii) requires that
certain deficiencies identified during the annual inspection must be
monitored during the monthly inspection and suggested that this
requirement be specifically stated in paragraph (b). (ID-0226.) OSHA
agrees and is adding paragraph (b)(2), which states that the inspection
must include any deficiencies identified in the annual inspection as
needing to be monitored.
Paragraph (c) Annual/Comprehensive
Proposed Sec. 1926.1413(c) required an annual inspection (at least
every 12 months) for wire rope, conducted by a qualified person. The
annual inspection would be considerably more thorough and comprehensive
than the shift and monthly inspections required by paragraphs (a) and
(b) of this section. In addition, it would be conducted by a
``qualified person,'' who would have greater expertise than the
``competent person'' who must conduct the shift and monthly
inspections. The timing and inspector qualifications for the annual
wire rope inspection coincide with those for the general equipment
annual/comprehensive inspection. C-DAC believed that the use of
corresponding timeframes and personnel will allow inspections to be
conducted efficiently and thereby promote effectiveness and compliance.
Under proposed paragraph (c)(1), all apparent deficiencies and
critical review items required to be checked in a shift inspection
would have to be checked in the annual/comprehensive inspection (see
paragraphs (a)(2) and (a)(3)). No comments were received on this
provision, and it is being promulgated as proposed.
Proposed paragraph (c)(2) provided for a more thorough inspection
than that required under paragraph (c)(1). Under proposed paragraph
(c)(2), a complete and thorough inspection, covering the surface of the
entire length of the wire ropes, would be required. One commenter,
which had nominated a member of C-DAC, stated that the entire length of
the rope needed to be inspected more frequently than annually and
suggested that this requirement should be included in the monthly
inspection provision. (ID-0 292.1.) This commenter did not provide any
evidence to support this assertion or explain why it was deviating from
the position its nominee took in favor of the provision in the C-DAC
negotiations. This comment is accorded diminished weight in light of
this inconsistency of position. OSHA defers to the expertise of the
full Committee and is retaining the requirement that the entire length
of the rope be inspected during the annual inspection; it is not adding
such a requirement to the monthly inspection provision.
As discussed in relation to Sec. 1926.1413(a)(3), OSHA has, in the
final rule, modified proposed Sec. Sec. 1926.1413(a)(3)(iv) and
(a)(3)(v) to read the same as proposed Sec. Sec.
1926.1413(c)(2)(ii)(C) and (F) (``Wire rope in contact with saddles,
equalizer sheaves or other sheaves where rope travel is limited'' and
``Wire rope at or near terminal ends''). Section 1926.1413(c)(2)(ii)(A)
now incorporates by reference the critical review items listed in
Sec. Sec. 1926.1413(a)(3)(iv) and (a)(3)(v), thereby making the items
listed in Sec. Sec. 1926.1413(c)(2)(ii)(C) and (c)(2)(ii)(F)
redundant.
Two commenters supported keeping paragraphs (c)(2)(ii)(C) and (F),
even though they are also included in paragraph (a)(3) of this section,
saying that annual inspections are more comprehensive and, in their
view,
[[Page 47978]]
should be treated separately. (ID-0205.1; -0213.1.) However, the
modification made by OSHA does not change the proposed requirements for
annual inspections; it only avoids redundant language. Accordingly,
OSHA is deleting proposed Sec. Sec. 1926.1413(c)(2)(ii)(C) and (F)
from the final rule and is renumbering proposed paragraphs (D) and (E)
to (C) and (D).
Proposed paragraph (c)(2)(iii) established an exception to the
timing of the annual/comprehensive inspection where that inspection is
infeasible due to ``existing set-up and configuration of the equipment
(such as where an assist crane is needed) or due to site conditions
(such as a dense urban setting).'' The provision sets a timetable for
annual/comprehensive inspections in such cases that requires the
inspection to be performed ``as soon as it becomes feasible, but no
longer than an additional 6 months for running ropes and, for standing
ropes, at the time of disassembly.'' The provision reflects C-DAC's
concern that, particularly in densely developed urban settings, the
inability to boom down would prevent the employer from completing a
comprehensive wire rope inspection.
Two commenters objected to the length of the six-month period and
suggested it be reduced to one month. (ID-0122.0; -0178.1.) Neither
commenter provided any evidence of explanation to support its
recommendation, so OSHA is deferring to C-DAC's collective judgment and
is retaining the six-month period in the proposed rule.
Proposed paragraph (c)(3) listed the next steps to be taken once
the qualified person performing the annual/comprehensive inspection
discovers a deficiency. The qualified person must immediately determine
whether the deficiency constitutes a safety hazard. If it does, under
proposed paragraph (c)(3)(i), the rope would either have to be replaced
or, if the deficiency is localized, the damaged part may be severed and
the undamaged portion may continue to be used. As with paragraph
(a)(4)(i)(B), joining lengths of wire rope by splicing would be
prohibited.
As discussed under paragraph (b)(3), a commenter recommended that
the requirement of paragraph (c)(3)(ii) should be explicitly referenced
in the monthly inspection reports, and OSHA has made an addition to
paragraph (b)(3) to accomplish this. (ID-0226.) Also, as discussed
under paragraph (a)(4)(i)(B), OSHA is adding a requirement to paragraph
(c)(3)(i)(B) that at least two full wraps of wire rope must remain on
the drum when the load and/or boom is in its lowest position.
Paragraph (c)(4) requires the annual/comprehensive inspection to be
documented according to Sec. 1926.1412(f)(7), which is the
documentation provision for the annual general inspection. As with
other parallel requirements in this section, C-DAC intended to ensure
consistency with other recordkeeping requirements and thus facilitate
compliance. Section 1926.1412(f)(7), which is incorporated by
reference, requires the employer that is conducting the inspection to
document and retain for 12 months, ``the items checked and the results
of that inspection'' and ``the name and signature of the person who
conducted the inspection and the date.'' No comments were received on
paragraph (c)(4), and it is promulgated as proposed.
Paragraph (d)
Proposed Sec. 1926.1413(d) provided that employers may not use
rope lubricants that are of the type that hinder inspection.
This provision would prohibit, for example, rope lubricants that
are opaque or so dark that they mask the wire rope inside them. A
commenter suggested adding to this provision the following sentence:
``The rope surface and strand valleys must be cleaned of dirt,
lubricant or other material that will hinder inspection.'' (ID-0121.1.)
OSHA determines that this addition is unnecessary. Section 1926.1413
requires various inspections, and the requirement to conduct an
inspection inherently means that where foreign material that would
prevent the inspection is present, it must be removed. The prohibition
against rope lubricants that are of the type that hinder inspection is
needed because they are difficult to remove and pose an unnecessary
obstacle to compliance. Section 1926.1413(d) is promulgated in the
final rule as proposed.
Paragraph (e)
A commenter suggested adding that the competent person who conducts
the shift inspection must receive such information in writing. (ID-
0132.1.) Similarly, OSHA determines that the competent person or
persons who conduct shift and monthly inspections, and the qualified
person who conducts annual inspections, must have access to all written
documents produced under Sec. 1926.1413. In response to this comment,
OSHA is adding paragraph (e) to ensure that persons who conduct
inspections have access to documentation required by Sec. 1926.1413
during the period for which those documents must be retained. This
documentation serves as a reference for conditions that must be
monitored in subsequent inspections. OSHA concludes that this
documentation will ensure that only safe equipment is put into service.
Section 1926.1414 Wire Rope--Selection and Installation Criteria
This section sets forth requirements for selecting and installing
wire rope. C-DAC determined, and OSHA agrees, that the proper selection
and installation of wire rope is integral to the safe operation of
equipment that uses such rope. Improper selection or installation could
cause the wire rope to fail, resulting in any number of hazards from
uncontrolled movement of the equipment or the load. As discussed in the
proposed rule, Sec. 1926.1414, in addition to addressing safety
concerns related to wire rope selection and installation, provides
greater flexibility in the selection process than previous requirements
under subpart N (73 FR 59781, Oct. 9, 2008). This flexibility reflects
and takes advantage of new developments in wire rope technology.
Paragraph (a)
Proposed paragraph (a) of this section stated that ``selection of
replacement wire rope shall be in accordance with the requirements of
this section and the recommendations of the wire rope manufacturer, the
equipment manufacturer, or a qualified person.'' In the proposed rule,
OSHA noted that proposed paragraph (a)'s mention of only ``replacement
rope'' could mislead some readers to conclude that all of Sec.
1926.1414 applies only to replacement rope, whereas C-DAC clearly
intended that Sec. 1926.1414 would apply to both original equipment
rope and replacement rope. OSHA proposed to reword Sec. 1926.1414(a)
to read as follows: ``Original equipment wire rope and replacement wire
rope shall be selected and installed in accordance with the
requirements of this section. Selection of replacement wire rope shall
be in accordance with the recommendations of the wire rope
manufacturer, the equipment manufacturer, or a qualified person.''
OSHA requested public comment on such a revision. OSHA received no
comment on proposed Sec. 1926.1414(a) or on its proposed rewording.
Accordingly, OSHA modified Sec. 1926.1414(a) of the final rule to
reflect the proposed rewording.
[[Page 47979]]
Paragraph (b)
The proposed rule, in Sec. 1926.1414(c), included design factors
for rotation resistant rope but did not include design factors for
standard (that is, non-rotation resistant) rope. In the proposal, OSHA
stated its determination that, in light of the importance of design
factors for wire rope, the omission of design factors for standard rope
was inadvertent (73 FR 59781, Oct. 9, 2008). OSHA proposed to include
the design factors for standard rope in sec. 5-1.7.1 of ASME B30.5-
2004. OSHA requested public comment on the issue.
Comments were received from two parties, both of whom nominated C-
DAC members. (ID-0205.1; -0213.1.) They stated that the omission was
intentional, believing that C-DAC did not include design factor
criteria for standard wire rope because technology is continually
evolving and including design criteria in the rule may hamper future
crane operations. The commenters stated that the proposed rule had
provisions requiring end users to conform with requirements or criteria
established by the wire rope manufacturer, equipment manufacturer, or a
qualified person.
OSHA notes that C-DAC determined it was important for this rule to
allow flexibility to accommodate future technological changes. The
commenters on this issue reiterated that determination, and OSHA shares
that concern. Setting unduly restrictive specifications based on
current technology could unnecessarily impinge on the use of future
designs. The Agency also concludes, however, that some form of minimum
criteria is necessary so that those selecting wire rope have a minimum
benchmark available as a reference point.
To meet both of these objectives, the Agency has decided, in the
final rule, to add a new paragraph (b) to Sec. 1926.1414 to provide
employers with two options with regards to wire rope design criteria.
The first option would be to comply with an industry consensus standard
(sec. 5-1.7.1 of ASME B30.5-2004) on design factors for standard wire
rope. See Sec. 1926.1414(b)(1). This is a well-established benchmark
for standard wire rope design factors, and the Agency therefore
determined that it is appropriate to include it as an option. Paragraph
(c) of sec. 5-1.7.1 is excluded because that deals with rotation
resistant rope, which is addressed in Sec. 1926.1414(e).
The second option provides a performance benchmark that is based on
the rope's compatibility with the rated capacity of the equipment and
on the need to be able to rely on the inspections in Sec. 1926.1413 as
an effective means of ensuring the continued safety of the rope. See
Sec. 1926.1414(b)(2). Specifically, the design must be sufficient to
ensure that, when the equipment is used in accordance with its rated
capacity, the employer will be able to prevent a sudden failure of the
rope by meeting the inspection requirements in Sec. 1926.1413.
This concept reflects the underlying premise of Sec. 1926.1413
that regular inspection of the rope can prevent catastrophic failure
because the rope's degradation will take place over time and will be
accompanied by indications of wear. Therefore, if the rope is
appropriate for the equipment, the degradation that occurs with use
will be sufficiently gradual so that its development can be identified
in the required inspections and the rope can be removed from service
before safety is compromised.
Paragraph (c)
The benchmarks in the two options in paragraph (b) of this section
do not address an additional design issue, which is the suitability of
the wire rope with respect to the proper functioning of the equipment.
For example, selecting a rope with a diameter that is too large for a
particular machine can result in the rope jumping a sheave. Such a
condition could, among other adverse consequences, affect the
operator's ability to control the load. Therefore, OSHA has added an
additional provision, in new Sec. 1926.1414(c), that requires the rope
to be compatible with the safe functioning of the equipment.
Paragraph (d) Boom Hoist Reeving
With the addition of the two new paragraphs, (b) and (c), OSHA is
redesignating proposed paragraphs (b) through (f) of this section as
paragraphs (d) through (h) in the final rule.
Proposed paragraph (b) would have prohibited the use of fiber core
ropes for boom hoist reeving, except for use on derricks. In the
Committee's view, the composition of fiber core ropes makes them prone
to degradation that is not completely detectable by normal inspection
techniques. Nothing in the record contradicts that conclusion.
One commenter stated that there was no practical reason to allow
the use of fiber core ropes for boom hoist reeving on derricks but not
in other boom hoist applications. (ID-0121.1.) However, as explained in
the proposed rule, the distinction between derricks and cranes is
warranted because the sheaves on derricks are smaller than those on
cranes and therefore require ropes that can accommodate reverse bending
better than ropes used on cranes. Fiber core ropes are more pliable
than ropes with a metal core and are therefore suited to applications
requiring greater reverse bending, such as use on derricks. Moreover,
the distinction between derricks and cranes is consistent with current
national consensus standards. The 2004 version of ASME B30.5, in sec.
5.1.7.2(b), prohibits the use of fiber core wire ropes for boom hoist
reeving for mobile and locomotive cranes. By contrast, the standard in
the ASME B30 series that applies to derricks, ASME B30.6-2003, does not
prohibit the use of fiber core wire rope for boom hoist reeving.
Permitting the use of fiber core ropes for boom hoist reeving on
cranes, as the commenter suggests, would reduce protection over that
currently considered prudent in the industry, and OSHA is therefore
promulgating paragraph (b)(1) as proposed, renumbering it as paragraph
(d)(1).
Proposed paragraph (b)(2) prohibited the use of rotation resistant
rope for boom hoist reeving except where the requirements of paragraph
(c) (renumbered paragraph (e) in the final rule), are met. No comments
were received on this paragraph (b)(2), and it is being promulgated as
paragraph (d)(2) with the reference to paragraph (c) in the proposed
rule changed to paragraph (e)
Paragraph (e) Rotation Resistant Ropes
Paragraph (e)(1)
Proposed paragraph (c)(1) of this section classified rotation
resistant ropes into three ``Types'' (``Type I'', ``Type II'', and
``Type III''). Proposed paragraph (c)(2) specified use limitations and
requirements for each type of wire rope. This approach differed from
former subpart N, ANSI B30.5-1968 and ASME B30.5-2004, which did not
distinguish between types of rotation resistant rope. By distinguishing
between different types of rope, the Committee sought to ensure that
ropes with different internal structures were subject to appropriate
requirements and limitations that would enable them to be used safely.
Types I, II, and III, which have different capabilities, were described
in proposed paragraph (c)(1).
ASTM A 1023/A 1023M-02 has a similar classification system,
although it divides rotation resistant ropes into ``categories'' rather
than ``types.'' One commenter noted that there is no meaningful
difference between the classification in the proposed rule and that in
ASTM A 1023. (ID-0060.1.) This
[[Page 47980]]
commenter urged OSHA to incorporate by reference the ASTM definitions
rather than to state the definitions in the final rule. This would, the
commenter suggested, avoid confusion among manufacturers and users who
rely on the ASTM's classification system.
Although the provisions in the final rule are substantively similar
to those in the ASTM standard, the Agency uses the term ``category'' in
the wire rope provisions of subpart CC that relate to the
classification of apparent deficiencies (see, e.g., Sec.
1926.1413(a)(2)). Therefore, to avoid confusion with those provision,
OSHA uses the term ``type'' in classifying rotation resistant rope in
Sec. 1926.1414. OSHA concludes that the use of ``category'' in the
ASTM standard would cause considerable confusion if OSHA were to
incorporate the ASTM definitions directly. Accordingly, OSHA is
promulgating proposed paragraph (c)(1) as paragraph (e)(1) of the final
rule.
Paragraph (e)(2)
Paragraphs (e)(2) of this section sets forth use requirements of
the three types of rotation resistant rope in terms of operating design
factors (and in some instances activity). The purpose of these
provisions is to ensure that the selection of the type of rotation
resistant rope is suitable, in terms of safety, to its use.
These requirements are identical to those in proposed paragraph
(c)(2). The preamble to the proposed rule explained in detail the basis
for setting these design factors for rotation resistant rope (see 73 FR
59782-59783, Oct. 9, 2008). One commenter, stated that rotation
resistant ropes should have a design factor of less than 5 only for
single engineered lifts, but provided no rationale for this position.
No other comments addressed the proposed design factors, and OSHA is
deferring to the expertise of C-DAC and incorporating the design
factors in paragraph (e)(2) of the final rule.
As discussed in the preamble to the proposed rule, paragraphs
(e)(2)(i)-(iv) use the phrase ``operating design factor.''
``Operating'' is included to show that the factors specified in these
provisions are to reflect how the rope is installed on the specific
piece of equipment in which it is used. In other words, the operating
design factor is calculated based on numerous considerations associated
with both the rope's design and how it is installed on the equipment.
The prohibition on the use of rotation resistant rope for duty
cycle and repetitive lifts does not apply to Type I rope because the
Committee determined that such rope is significantly more resistant to
rotation or torque compared with Types II and III. This reduces Type
I's potential for internal wear during use and moves degradation from
the inner wires to the outer wires, where damage is more easily
detected during wire rope inspections. Accordingly, the Committee
concluded that Type I rope can safely be used for duty cycle and
repetitive lifts at an operating design factor below 5 (but no less
than 3.5), as specified in proposed paragraph (c)(2)(ii). No comments
addressed the distinction between the types of wire rope in paragraph
(e)(2)(i) of this section.
In the proposed rule, OSHA noted that C-DAC did not include
definitions for ``duty cycle'' or ``repetitive lifts.'' The Agency
asked for comment on whether definitions of these terms should be
included in Sec. 1926.1401 and proposed definitions that it determined
were consistent with C-DAC's understanding and widely understood in the
industry. OSHA proposed to define ``duty cycle'' as ``a continuous
operation in which approximately the same type and weight of load is
handled.'' It gave dredging with a clamshell as an example of duty
cycle work. OSHA proposed to define ``repetitive lifts'' as ``a
continuous operation with loads that may vary in size and weight.'' For
an example, it noted that steel erection work typically involves
repetitive lifts of various size and configurations of structural steel
members.
Three commenters agreed that ``duty cycle'' and ``repetitive
lifts'' should be defined, and no commenters suggested otherwise. (ID-
0205.1; -0213.1; -0226.) The commenters on the subject did not object
to OSHA's proposed definition of ``repetitive lifts,'' but two
recommended that OSHA's proposed definition of ``duty cycle'' be
replaced with the following:
A type of crane service in which bulk material is transferred
from one point to another by rapidly lifting, swinging, booming, and
placing the material. Typical types of duty cycle service are
dragline, clamshell, grapple, and magnet. This type of service is
differentiated from standard crane ``lift service'' in that cycle
times are very short and continuous, often less than 1 minute per
load, and loads are lifted and placed in general areas rather than
precise positions to permit such rapid cycles.
(ID-0205.1; -0213.1.)
OSHA determines that in most respects the commenters' suggested
definition is clearer and better reflects the intent of the Agency.
Therefore, OSHA is adopting their definition with only minor
modification (the reference to ``lifting, swinging, booming and
placing'' is not necessary, since those actions simply describe typical
crane movements). OSHA is therefore adopting a slightly modified
version of the definition suggested by the commenters. This definition
is being included in Sec. 1926.1401, as is the definition for
``repetitive lifts'' proposed by OSHA and quoted above.
Paragraph (e)(3)
This proposed paragraph specified additional requirements that must
be met when Types II and III rotation resistant wire rope are used with
an operating design factor of between 3.5 and 5 (for non-duty cycle,
non-repetitive lifts). The Committee concluded that these additional
requirements are needed to ensure that use of such ropes would be safe.
Due to renumbering, proposed paragraph (c)(3) corresponds to final
paragraph (e)(3). One commenter believed that the reference to ``these
provisions'' in proposed paragraph (c)(3)(iii) was unclear and should
be clarified to state whether it refers to the entire subpart CC or to
specific provisions. (ID-0214.1.) As used here, ``these provisions''
refers to lifts under final paragraph (e)(3). To avoid any ambiguity,
``these provisions'' is being changed to ``Sec. 1926.1414(e)(3).''
The same commenter who stated in regard to final paragraph (e)(2)
that rotation resistant rope should have a design factor of less than 5
only for single engineered lifts recommended that paragraph (e)(3) also
be changed to reflect its recommendation. (ID-0292.1.) OSHA is
rejecting that suggestion for the same reason given in relation to
paragraph (e)(2). No other objections to proposed paragraph (c)(3)
(final paragraph (e)(3)) were received. Accordingly, with the single
exception just mentioned in regard to final paragraph (e)(3)(iii),
proposed paragraph (c)(3) is being promulgated as final Sec.
1926.1414(e)(3).
Paragraph (e)(4) Additional Requirements for Rotation Resistant Rope
for Boom Hoist Reeving
Paragraph (e)(4)(i) of this section prohibits rotation resistant
rope from being used for boom hoist reeving except where the
requirements of paragraph (e)(4)(ii) of this section are met. C-DAC
members determined that the general prohibition was necessary because,
in their experience, rotation resistant rope used for boom hoist
reeving tends to twist and thereby suffer internal damage when it
passes over sheaves that are close together. However, C-DAC concluded
that safety would not be compromised when
[[Page 47981]]
rotation resistant rope is used for boom hoist reeving as long as the
conditions in paragraph (e)(4)(ii) of this section are met.
The Committee also determined that the exception would serve a
practical purpose, especially when using attachments such as luffing
jibs. The auxiliary hoist is typically used as a boom hoist for such
attachments, and is normally rigged with rotation resistant rope. The
exception enables the employer to avoid the need to change the rope
when using such attachments when safety could be assured by meeting the
specified conditions for its use.
The conditions under which rotation resistant rope may be used for
boom hoist reeving were contained in proposed paragraph (c)(4). No
substantive objections to that proposed paragraph were received. Two
commenters stated that the phrase ``rated capacity'' in proposed
paragraph (c)(4)(ii)(F) should be replaced with ``rated load
capacity.'' (ID-0205.1; -0213.1.) As noted in the proposed rule, the C-
DAC proposal attributed the same meaning to both ``rated capacity'' and
``rated load capacity,'' and OSHA is consistently using the term
``rated capacity'' wherever C-DAC used either term to avoid any
confusion (see 73 FR 59738, Oct. 9, 2008). Accordingly, proposed
paragraph (c)(4) is being promulgated as final paragraph (e)(4) without
substantive change.
Paragraph (f)
Proposed paragraph (d) of this section specified that wire rope
clips used with wedge sockets may only be attached to the unloaded dead
end of the rope, except that devices specifically designed for dead
ending rope in a wedge socket are also permitted.
The Committee concluded that this provision was necessary to ensure
attachment strength, reliability and prevention of cable damage. No
comments concerning this provision were submitted, and OSHA is
promulgating it as Sec. 1926.1414(f).
Paragraph (g)
Proposed paragraph (e) of this section stated that socketing must
be done according to the specifications of the manufacturer of the wire
rope or fitting. No comments regarding this provision were received,
and OSHA is promulgating it as Sec. 1926.1414(g).
Paragraph (h)
Proposed paragraph (f) of this section specified that seizings must
be placed on each side of the point to be cut before the wire rope is
cut. It also specified that the length and number of seizings must be
in accordance with the instructions of the wire rope manufacturer.
Seizings are needed to hold the wire in the strands and the strands
in place during handling while cutting, thereby keeping the rope beyond
the area of the cut intact. In the Committee's experience, the
instructions and procedures for seizing differ among various wire rope
manufacturers. The Committee decided to require employers to follow the
manufacturer's instructions because it concluded that wire rope
manufacturers have the knowledge and expertise to best determine the
length and number of seizings that are needed to maintain the integrity
of their wire ropes during cutting. No comments regarding this
provision were received, and OSHA is promulgating it as Sec.
1926.1414(h).
Section 1926.1415 Safety Devices
This section sets forth the requirements for equipping cranes and
derricks with certain safety devices and prohibits the use of the
equipment if those devices are not working properly.
The safety devices addressed by this section are devices that C-DAC
determined are essential for the safe operation of cranes and derricks
and therefore, required to be present and in proper working order
during all equipment operations with no alternative measures permitted.
Those devices considered less critical to equipment safety are
designated as operational aids and are governed by Sec. 1926.1416.
That section allows equipment to continue operating if the operational
aid fails or malfunctions but requires certain temporary alternative
protective measures in such cases. Those devices designated as safety
devices in this section, however, are so essential and integral to safe
equipment operation that C-DAC determined that there is no acceptable
alternative to having them in proper working order.
Paragraph (a) Safety Devices
Paragraph (a) of this section lists the safety devices that are
required on all equipment covered by this subpart and specifications
and conditions applicable to those devices (including the exemption of
certain equipment from the requirements of the listed devices).
Crane Level Indicator: Paragraph (a)(1) requires that a crane level
indicator be on all equipment covered under this subpart. C-DAC
determined that level equipment is a key factor in ensuring equipment
safety. Using a crane level indicator is necessary because it has the
requisite accuracy for leveling the equipment. C-DAC members stressed
the need to use a crane level indicator because, if the equipment is
not properly leveled, it will not have all the capacities indicated in
the load charts. Reliance on the charts in such situations could cause
the equipment to overturn or otherwise fail.
Section 1926.1415(a)(1)(i) specifies that a crane level indicator
must either be built into the equipment or available on it. One
commenter requested clarification of whether the rule allows for the
use of a carpenter's level to satisfy the requirements of proposed
Sec. 1926.1415(a)(1)(i). (ID-0292.1.)
A carpenter's level of sufficient length (such as a four-foot
level), available to the operator, that gives an accurate reading,
meets the requirements of this paragraph as proposed; such a level is
typically used in the industry for this purpose. Therefore, it is not
necessary to revise the text of the rule and OSHA is promulgating
paragraph (a)(1)(i) as proposed.
Section 1926.1415(a)(1)(ii) addresses the hazard posed by false
readings from non-operational crane level indicators remaining on the
equipment. The Agency is requiring built-in (i.e., integral) crane
level indicators that are not working properly to be tagged-out or
removed. Similarly, removable crane level indicators must be removed
from the equipment if they are not working properly. Both requirements
are intended to avoid confusion and the operator's inadvertent reliance
on a device that is not working correctly. OSHA received no comment on
this provision. Therefore, OSHA promulgated it as proposed, with the
additional specification that a removable crane level indicator must be
removed prior to operation if it is not working properly.
Paragraph (a)(1)(iii) exempts portal cranes,\78\ derricks, floating
cranes/derricks and land cranes/derricks on barges, pontoons, vessels,
or other means of flotation from the requirements of Sec.
1926.1415(a)(1). C-DAC members indicated that these types of equipment
are leveled and then fixed in place when installed, precluding the need
for a crane level indicator.\79\ OSHA
[[Page 47982]]
received no comment on this provision. Therefore, OSHA is promulgating
paragraph (a)(1)(iii) as proposed.
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\78\ Section 1926.1401 defines ``portal crane'' as a ``type of
crane consisting of a rotating upperstructure, hoist machinery, and
boom mounted on top of a structural gantry which may be fixed in one
location or have travel capability. The gantry legs or columns
usually have portal openings in between to allow passage of traffic
beneath the gantry.''
\79\ Note that, Sec. 1926.1437(e) requires barge, pontoon,
vessel or other means of flotation list and trim device for floating
cranes/derricks and land cranes/derricks.
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Boom Stops: Paragraph (a)(2) requires boom stops on all equipment
except for derricks and hydraulic booms (see the discussion of this
provision in 73 FR 59785, Oct. 9, 2008). ``Boom stop'' is defined in
Sec. 1926.1401 as a device that restricts the boom from moving above a
certain maximum angle and toppling over backwards. OSHA received no
comment on this provision or definition. Therefore, OSHA is
promulgating paragraph (a)(2) as proposed.
Jib Stops: Section 1926.1415(a)(3) requires jib stops on all
equipment where a jib is attached, except for derricks (see the
discussion of this provision in 73 FR 59785, Oct. 9, 2008). The
standard defines ``Jib stop (also referred to as a jib backstop)'' in
Sec. 1926.1401 as the ``same type of device as a boom stop but used
for a fixed or luffing jib.'' OSHA received no comment on this
provision or definition. Therefore, OSHA is promulgating paragraph
(a)(3) as proposed.
Foot Pedal Brake Locks: Proposed paragraph (a)(4) required that
equipment with foot pedal brakes have locks, except for portal cranes
and floating cranes. Such locks prevent the unintentional disengagement
of a foot pedal brake, which could lead to unintended equipment
movement and consequent injuries and fatalities. Due to the physical
effort needed to keep the pedal engaged, this is particularly important
where the brake is applied for long periods.
The rationale for exempting portal cranes and floating cranes from
this requirement discussed by C-DAC was that there are instances in
which, due to the pitching of a floating crane and the pitching of the
vessel or object in the water with which a portal crane works, the
operator may have to immediately release the brake. The concern is
that, if the foot pedal brake lock has been activated, the operator may
not be able to release the brake quickly enough to prevent the
equipment from being overloaded or to prevent unintended movement of
the load.
As explained in the proposed rule, upon review of the exemption in
the provision, the Agency realized that C-DAC assumed that the locking
device would always be of the type that is located on the brake pedal.
That type of device can be difficult to disengage, thereby delaying the
operator's ability to release the brake. However, there are other types
of brake locking mechanisms that do not present this problem (for
example, a brake lock that is hand-actuated). This raised the issue of
whether the exemption is needed. Consequently, OSHA asked for public
comment on whether to change proposed Sec. 1926.1415(a)(4) by deleting
the exemption and requiring a hoist brake locking mechanism for all
cranes.
OSHA received no comment on this issue. Therefore, OSHA has not
included the exemption in the final rule. The final paragraph (a)(4) is
published as proposed except that OSHA has removed the phrase ``except
for portal cranes and floating cranes.''
Integral Holding Device/Check Valve: Paragraph (a)(5) requires that
hydraulic outrigger jacks have an integral holding device/check valve.
Such a device is necessary to prevent the outrigger jack from
collapsing in the event of a hydraulic failure. (See the discussion of
this provision in 73 FR 59786, Oct. 9, 2008.) OSHA is promulgating this
provision as proposed.
Two commenters, both of which had nominated C-DAC members,
suggested moving this requirement to Sec. 1926.1433 (Design,
construction and testing) due to their belief that an integral holding
device/check valve is a design feature. (ID-0205.1; -0213.1.) Neither
of these organizations' nominees dissented on this issue. Both
organizations indicated in their comments that they supported the
recommendations of C-DAC and were not providing any negative comments
on provisions that mirrored the C-DAC consensus document. Since this
provision is unchanged from the C-DAC consensus document, the Agency
assumes that the commenters believe that they are suggesting a non-
substantive formatting change.
The commenters are mistaken in that regard. By locating this
provision in the Safety Devices section of the standard, the employer
is required to inspect the integral holding device/check valve (see,
e.g., Sec. 1926.1412(d)(1)(xiv)) and, if it is not functioning
properly, to not use the crane until it is repaired (see Sec.
1926.1415(b)). If this provision were moved to the Design, construction
and testing section, it would no longer be considered a safety device.
If it was not functioning, it would be left to the competent person
conducting the shift and monthly inspections (and the qualified person
conducting the annual inspection) to determine if the deficiency
constituted a safety hazard (see, e.g., Sec. 1926.1412(d)(2)). C-DAC
determined, and OSHA agrees, that an integral holding device/check
valve is essential for the safe operation of hydraulic outrigger jacks
and therefore needs to be designated as a safety device.
Rail Clamps and Rail Stops: Paragraph (a)(6) specifies that
equipment on rails have rail clamps and rail stops, except for portal
cranes. (See the discussion of this provision in 73 FR 59786, Oct. 9,
2008.) OSHA received no comment on this provision. Therefore, it is
promulgated as proposed.
Horn: In the proposed rule, a horn was not listed as a safety
device. One commenter requested that the standard require a horn. (ID-
0156.1.) ASME B30.5-2004 requires that an ``audible signal device'' be
provided, within reach of the operator. OSHA agrees that a horn is an
important safety feature; it is typically a standard feature on cranes
and is used to warn workers of imminent dangers. Therefore, OSHA has
included a horn in the list of safety devices in Sec. 1926.1415(a)(7)
of the final rule.
The horn need not be permanently installed on the equipment, but it
must be in a location where the operator can access and use it
immediately to warn workers of imminent danger. An operator may use a
removable device, such as a hand-held air horn that is stored near the
operator in a manner that would not interfere with the operation of the
equipment, if it satisfies those requirements.
OSHA is also requiring in Sec. 1926.1415(a)(7)(ii) that built-in
(i.e., integral) horns be removed or tagged out when they are not
working properly. Similarly, a removable horn must be removed from the
equipment when it is not working properly. As noted in the previous
paragraph, the operator would be permitted to resume operation if an
operational horn, such as a hand-held air horn, is added to the cab in
the proper location. It is therefore critical that the operator, and
operators in subsequent shifts, not be confused about which horn is
operational. A non-operational horn must be tagged out or removed,
prior to the resumption of operation, to avoid the operator's
inadvertent reliance on the nonoperational horn. The horn is often
required when an unexpected hazard presents itself, and the operator
must therefore locate and use it quickly.
Paragraph (b) Proper Operation Required
Paragraph (b) prohibits the operation of the equipment if any of
the safety devices listed in this section are not in proper working
order. Under OSHA's existing Sec. 1926.20(b)(3), employers must tag
out or remove any equipment that is not in compliance with any
applicable requirement in part 1926. In Sec. 1926.1417(f), OSHA makes
it clear that when equipment is ``taken out of
[[Page 47983]]
service,'' the employer must place a tag in the cab to provide clear
notice to all employees that the equipment is out of service. To avoid
any potential ambiguity about whether equipment is ``taken out of
service'' when its operation is prohibited because of an inoperational
safety device, OSHA is inserting new text in Sec. 1926.1415(b) and a
cross reference to Sec. 1926.1417 (Operation). Specifically, final
paragraph (b)(2) requires that equipment be ``taken out of service''
when one of the safety devices in Sec. 1926.1415 is not operating
properly. The general tagout requirement in Sec. 1926.1417(f)(1) will
apply whenever any of the safety devices are not operating properly.
The Agency notes that the specific tagout/removal requirements for
crane level indicators (Sec. 1926.1415(a)(1)(ii)) and horns (Sec.
1926.1415(a)(7)(ii)) are intended to supplement this general
requirement. Unlike the safety devices addressed in Sec. Sec.
1926.1415(a)(2) through (a)(6), which are not as likely to be left on
the equipment once they are non-operational, Sec. Sec.
1926.1415(a)(1)(ii)) and 1926.1415(a)(7)(ii)) address the additional
hazard that non-operational equipment might remain in the cab, and be
accidently relied on by the operator, once an operational version of
the same device has been placed in the cab.
Section 1926.1416 Operational Aids
This section sets forth the requirements for equipping cranes and
derricks with certain operational aids. ``Operational aids'' are
defined in Sec. 1926.1401 as ``devices that assist the operator in the
safe operation of the crane by providing information or automatically
taking control of a crane function. These include, but are not limited
to, the devices listed in Sec. 1926.1416 (`listed operational
aids').''
As discussed above regarding Sec. 1926.1415, OSHA determines that
the devices addressed in Sec. 1926.1416 enhance safety. However, they
are less essential to the safe operation of equipment than the safety
devices addressed by Sec. 1926.1415 because sufficient temporary
alternative measures are available. Crane operators historically used
these temporary alternative measures as safety precautions prior to the
widespread availability and use of these operational aids.
Paragraph (a)
Proposed paragraph (a) of this section provided that the
operational aids listed in this section are required on all equipment
covered by subpart CC, unless otherwise specified.
Other sections of this rule provide exceptions for various types of
equipment. Under Sec. 1926.1435(e)(1), this section does not apply to
tower cranes. Instead, the operational aids required for tower cranes
are specified in Sec. 1926.1435. Under Sec. 1926.1436(f)(1),
Sec. Sec. 1926.1416(d)(1), (e)(1), and (e)(4) do not apply to
derricks.
This section also does not apply to existing equipment manufactured
before certain dates. Those dates are keyed either to the time an
operational aid was first required by a national consensus standard or
to the effective date of the standard. One year after the effective
date of this final rule, the proposed rule would have required all
operational aids on all equipment, with a single exception: proposed
paragraph (e)(4) did not require load weighing or similar devices on
derricks.
A trade association asked that articulating cranes be exempt from
certain requirements of this section: the requirement for a boom angle
or radius indicator in paragraph (e)(1) of this section; the
requirement for a jib angle indicator in paragraph (e)(2) of this
section; the requirement for a boom length indicator in paragraph
(e)(3) of this section; and the requirement for an outrigger position
sensor/monitor in paragraph (e)(5)(i) of this section. (ID-0206.1.) As
to the first three, the commenter stated that these would not be
practical on articulating cranes because of the boom configuration on
such cranes. The commenter said that a boom angle indicator or jib
angle indicator could not be used because articulating cranes can have
up to three boom sections at different angles. Unlike cranes with
straight booms, their capacity is determined by the combination of boom
angles rather than a single angle. Similarly, the commenter stated,
boom length indicators are not practical on articulating cranes because
their lifting capacity is based on the position of the boom sections
rather than the boom length. Finally, the commenter asserted that
articulating cranes should be exempt from the requirement for outrigger
position sensor monitors because such cranes use stabilizers rather
than outriggers.
OSHA agrees with the commenter that boom angle indicators, jib
angle indicators, and boom length indicators are not appropriate for
articulating cranes for the reasons given by the commenter.
Accordingly, OSHA is adding Sec. 1926.416(a)(1), which excludes
articulating cranes from the requirements in Sec. Sec.
1926.1416(e)(1), (e)(2), and (e)(3).
OSHA is not exempting articulating cranes from the requirement of
Sec. 1926.1416(e)(5)(i). As discussed under Sec. 1926.1404, for
certain types of cranes, stabilizers serve the same function as
outriggers and, where appropriate, provisions of the proposed rule that
applied to outriggers are being changed in the final rule to also apply
to stabilizers. One such provision is paragraph (e)(5)(i) of this
section, which, as discussed below, has been modified from the proposed
rule to require outrigger/stabilizer position sensor monitors rather
than outrigger position sensor monitors on equipment manufactured more
than one year after the effective date of the standard. As so modified,
the provision appropriately applies to articulating cranes.
Another commenter stated that digger derricks do not typically have
anti-two blocking devices (paragraph (d)(3)), radius indicators
(paragraph (e)(1)), load weighing devices (paragraph (e)(4)), outrigger
position indicators (paragraph (e)(6)(i)), and hoist drum rotation
indicators (paragraph (e)(5)(ii).\80\ (ID-0155.1.) This commenter does
not state that such devices would be impractical on digger derricks but
only that they are not currently equipped with the devices. OSHA notes
that the ANSI standard applicable to digger derricks, ANSI/ASSE A10.31-
2006, does not require the devices listed by the commenter. As noted
above, this final rule is exempting certain older or existing equipment
from the need to be equipped with certain operational aids when the
consensus standard for such equipment has not required those devices.
Consistent with this policy, OSHA is specifying that only those digger
derricks manufactured more than one year after the effective date of
this standard must be equipped with anti-two blocking devices, boom
angle or radius indicators, and load weighing devices. Under Sec.
1926.1416(e)(5), outrigger position indicators and hoist drum rotation
indicators are not required on any equipment until one year after the
effective date of the standard, so it is not necessary to single out
digger derricks for special treatment for these devices. Accordingly,
OSHA is adding Sec. 1926.1416(a)(2) to the final rule, which provides
that the requirements in Sec. Sec. 1926.1416(d)(3), (e)(1), and (e)(4)
only apply to those digger derricks manufactured more than one year
after the effective date of this standard.
---------------------------------------------------------------------------
\80\ The term ``digger derrick'' is defined in Sec. 1926.1401.
As discussed in Sec. 1926.1400, digger derricks are not covered by
the standard when used for work related to utility poles but are
subject to this final rule when used covered for general lifting
activities unrelated to utility poles.
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[[Page 47984]]
Paragraph (b)
Proposed paragraph (b) of this section stated that operations shall
not begin unless the listed operational aids are in proper working
order, except where the employer meets specified temporary alternative
measures. If the crane or derrick manufacturer specified more
protective alternative measures, the employer would have to follow
those measures.
Upon reviewing the proposed paragraph, OSHA believes it does not
state its requirement as clearly as possible. As subsequent provisions
of this section make clear, employers may only use temporary
alternative measures while listed operational aids are being repaired,
and then only for limited times. OSHA is rewording paragraph (b) in the
final rule to make these requirements clearer.
Two hearing participants requested that, in general, OSHA remove
any provision in the proposed rule that would require strict adherence
to manufacturer's procedures. (ID-0341; -0342.) Compliance with
manufacturer procedures is addressed in the discussion of Sec.
1926.1417. In addition, OSHA determines that the rule addresses the
hearing participants' concerns. Employers can fully comply with the
standard by maintaining the listed operational aids in proper working
order. For brief periods while such aids are being repaired, employers
can generally comply by following the temporary alternatives listed in
the rule. Only if manufacturers recommend safer alternatives, which
OSHA concludes will rarely occur, will employers need to look to those
recommendations rather than the precautions specified in the rule.
Paragraph (c)
Paragraph (c) of this section states that if a listed operational
aid stops working properly during operations, the operator must safely
stop operations until the temporary alternative measures are
implemented or the device is again working properly. Further, if a
replacement part is no longer available, a substitute device that
performs the same type of function may be used, and the use of such a
device is not considered a modification under Sec. 1926.1434,
Equipment modifications. Section 1926.1434 applies to modifications or
additions that affect the capacity or safe operation of the equipment
except where the requirements of paragraphs (a)(1), (a)(2), or (a)(3)
of Sec. 1926.1434 are met. OSHA determines that it is unnecessary to
apply Sec. 1926.1434 to the use of a substitute operational aid
because, as long as the substitute device works properly, its use will
not affect the capacity or safe operation of the equipment. No comments
were received on this paragraph, and it is promulgated as proposed.
Paragraph (d) Category I Operational Aids and Alternative Measures
The standard categorizes operational aids by the amount of time
permitted for the use of temporary alternative measures in place of the
listed operational aids. Employers must ensure the repair of Category I
operational aids, addressed by paragraph (d), no later than 7 days
after the deficiency occurs. Category II operational aids, addressed
below by paragraph (e), have a 30-day time limit for repair. Except
where noted, C-DAC recommended each of these aids for the reasons set
forth below. The Committee further determined that each of the
temporary alternative measurers would be safe to use until the
deficient operational aid was restored to proper service within the
time required under the section. OSHA agrees. (For purposes of
clarification, the Agency has added a reference to Sec. 1926.1416(d)
noting that the requirements of Sec. 1926.1417(j) are applicable. See
further discussion at Sec. 1926.1417(j).)
Both Category I and II have an exception to the repair time limits.
For Category I, if the employer documents that it has ordered the
necessary parts within 7 days of the occurrence of the deficiency, the
repair must be completed within 7 days of receipt of the part. For
Category II, if the employer documents that it has ordered the
necessary parts within 7 days of the date on which the deficiency was
discovered, and does not receive the part in time to complete the
repair in 30 days, the repair must be completed within 7 days of
receipt of the part. OSHA determines that these time limits are both
feasible and reflective of the amount of time that it is appropriate to
rely on the temporary alternative measures in each category.
During the SBREFA Panel process, one Small Entity Representative
stated that an extended time limit might be required to determine the
appropriate part number for older equipment. Therefore, it might not be
possible to order a replacement within 7 days of the occurrence of the
deficiency. OSHA sought public comment on the extent to which this is a
problem. OSHA further sought comment on how to accommodate employers
when the unavailability of a part number hinders them from ordering a
replacement part. OSHA did not receive comments on these issues.
The SBREFA Panel also questioned whether the number of ``days'' for
ordering parts and completing repairs for operational aids refers to
calendar days or business days. Absent a different definition in the
standard, OSHA interpreted the word ``days'' to mean ``working days''
which, as discussed above in relation to proposed Sec. 1926.1407(e),
would mean Mondays through Fridays, excluding Federal holidays. OSHA
sought public comment on whether a different definition of ``days''
should apply under this section.
One commenter stated that the use of the term ``days'' is unclear.
(ID-0143.1.) Two commenters stated it was C-DAC's intention that the
term ``days'' mean calendar days as opposed to business days. The
commenters stated that the circumstances in Sec. 1926.1407(e), where
the rule uses business days, are unique because power companies are not
open/available on weekends.
OSHA concludes that the 7 and 30 day time frames should refer to
calendar days. The periods correspond to one calendar week and one
typical calendar month, and it is, therefore, easy to determine when
the period ends if they mean calendar days. Moreover, referring to
``calendar'' days will lead to faster repairs and help promote safety.
Therefore, OSHA has clarified by adding the word ``calendar'' before
each use of the word ``days'' in this section; the remainder of
paragraph (c) is identical to the proposed rule.
Paragraph (d) lists the required Category I operational aids and
the acceptable temporary alternative measures for these aids.
Boom Hoist Limiting Device: Paragraph (d)(1) requires that all
equipment manufactured after December 16, 1969, have a boom hoist
limiting device. As defined in Sec. 1926.1401, a boom hoist limiting
device ``disengages boom hoist power when the boom reaches a
predetermined operating angle'' and also ``sets brakes or closes valves
to prevent the boom from lowering after power is disengaged.'' Section
1926.1401 also defines the term ``boom hoist limiting device'' to
include ``boom hoist disengaging device, boom hoist shutoff, boom hoist
disconnect, boom hoist hydraulic relief, boom hoist kick-outs,
automatic boom stop device, or derricking limiter.'' A boom hoist
limiting device automatically prevents the boom hoist from pulling the
boom past the minimum allowable radius (maximum boom angle). If the
boom hoist pulls the boom past that point, a failure is likely (for
example, the boom
[[Page 47985]]
could buckle from being forced against the boom stop).
The December 16, 1969, date reflects the effective date of ASME
B30.5-1968. This was the first national consensus standard to require a
boom hoist limiting device, and C-DAC regarded that date as a
reasonable indicator of when the industry began to widely manufacture
or equip cranes and derricks with such devices. OSHA agrees. Although
the ASME standard only applies to crawler, locomotive, and truck
cranes, OSHA is extending this provision to all equipment based on
prevailing industry practice.
The standard includes three temporary alternative measures in
paragraphs (d)(1)(A)-(C), of which the employer must use at least one
if the boom hoist limiting device malfunctions: (A) Use of a boom angle
indicator; (B) clearly marking the boom hoist cable at a point that
will give the operator sufficient time to stop the hoist to keep the
boom within the minimum allowable radius; and, (C) if a spotter is
used, clearly marking the boom hoist cable at a point that will give
the spotter sufficient time to signal the operator and have the
operator stop the hoist to keep the boom within the minimum allowable
radius. C-DAC recommended these measures because historically they were
used by employers prior to the development of the boom hoist limiting
device.
In the proposed rule, Sec. 1926.1416(d)(1)(ii) specified that
employers must, on a permanent basis, use at least one of these
measures for equipment manufactured on or before December 16, 1969 that
``was not originally equipped'' with a boom hoist limiting device. OSHA
notes that equipment not originally equipped with a boom hoist limiting
device might have one added later, and that such a piece of equipment
should be treated the same as equipment originally equipped with such a
device. Accordingly, OSHA has modified Sec. 1926.1416(d)(1)(ii) by
replacing ``was not originally equipped'' with ``is not equipped'' and
removing ``on a permanent basis.'' If and when the equipment is
modified to include the limiting device, it would fall under Sec.
1926.1416(d)(1)(i). Until that point, it would remain under Sec.
1926.1416(d)(1)(ii), and at least one of the measures in paragraphs
(d)(1)(A)-(C) would be required at all times.
Luffing Jib Limiting Device: Paragraph (d)(2) requires that
equipment with a luffing jib have a luffing jib limiting device. As
defined in Sec. 1926.1401, a luffing jib limiting device ``is similar
to a boom hoist limiting device, except that it limits the movement of
the luffing jib.'' These devices function similarly and are
distinguished only as to the type of crane extension they are designed
to limit automatically, the jib or the boom. The temporary alternative
measures for a luffing jib limiting device are the same as those for a
boom hoist limiting device in paragraphs (d)(1)(i)(A)-(C). For clarity,
the Agency added the words, ``rather than the boom hoist'' to paragraph
(d)(2)(i).
Anti Two-Blocking Device: Paragraph (d)(3) sets forth the
requirements for anti two-blocking devices. Section 1926.1401 defines
``two-blocking'' as ``a condition in which a component that is
uppermost on the hoist line such as the load block, hook block,
overhaul ball, or similar component, comes in contact with the boom
tip, fixed upper block or similar component. This binds the system and
continued application of power can cause failure of the hoist rope or
other component.'' As the definition indicates, two-blocking can cause
the crane to drop the load, the headache ball, or another component,
creating a hazard to employees below. When hoisting personnel, an anti
two-blocking device had been required by former Sec.
1926.550(g)(3)(ii)(C) since October 3, 1988, but was not otherwise
required under subpart N. OSHA concludes that requiring the use of anti
two-blocking devices will reduce the number of crane-related injuries
and fatalities.
There are two forms of anti two-block devices: an automatic
prevention device or a warning device. The automatic prevention device
automatically stops two-blocking from occurring. The warning device
warns the operator when two-blocking is about to occur. OSHA determines
that an automatic prevention device provides better protection than a
warning device for employees, since it automatically stops two-
blocking. As discussed below, the standard ultimately requires
automatic prevention devices on all equipment manufactured after
February 28, 1992, under a phase-in schedule. The standard takes into
account of the date the national consensus standard, ASME B30.5, began
to require such devices for telescopic boom cranes, and that B30.5
continues to allow lattice boom cranes to be equipped with either
automatic prevention devices or warning devices.
ASME B30.5, effective February 28, 1992, states that telescopic
boom cranes must have automatic prevention devices. For lattice boom
cranes, ASME B30.5 states that they must have two-block protection but
allows greater flexibility, allowing them to be equipped with either
automatic prevention devices or warning devices. The additional
protection for telescopic boom cranes in the ASME standard reflects the
fact that such cranes are more likely to two-block because telescoping
the boom out (an action that does not occur with lattice boom cranes)
moves the boom's block closer to the load end of the hoist cable, which
can cause two-blocking.
Because February 28, 1992 is the date that ASME B30.5 first stated
that telescopic boom cranes must have anti two-block devices and is
when the industry first began widely manufacturing or equipping such
cranes with such devices, proposed paragraph (d)(3)(i) requires
automatic prevention devices on all telescopic boom cranes manufactured
after February 28, 1992. However, because ASME B30.5 allows lattice
boom cranes to have either an automatic prevention device or a warning
device since February 28, 1992, paragraph (d)(3)(ii)(A) gives employers
the option of using either device on lattice boom cranes manufactured
between February 28, 1992, and one year after the effective date of
this standard.
OSHA concludes that an automatic prevention device provides better
protection than a warning device because it directly addresses the
hazard, rather than alerting an operator and requiring an additional
step by the operator to address the hazard. Therefore, lattice boom
cranes manufactured more than one year after the effective date of this
standard must be equipped with an automatic prevention device.
Paragraph (d)(3)(ii)(C) excludes lattice boom equipment used during
certain activities from the anti two-block requirements of (d)(3)(A)
and (B). The provision exempts lattice boom equipment when used for
dragline, clamshell (grapple), magnet, drop ball, container
handling,\81\ concrete bucket, marine operations that do not involve
hoisting personnel, and pile driving work. C-DAC indicated that most of
these operations involve heavy repetitive motion, and anti-two-block
devices used during these activities consistently malfunction (that is,
the device ``trips'' even though two-blocking has not occurred) and are
frequently damaged.
---------------------------------------------------------------------------
\81\ In most situations hoisting containers are regulated under
29 CFR part 1918; this standard applies to hoisting containers only
where that activity is construction work. For example, hoisting a
container of construction material from a ship onto a concrete pier
that is part of a bridge construction project is a construction
activity covered by this standard.
---------------------------------------------------------------------------
However, note that Sec. 1926.1437(f)(1) requires anti two-block
devices on floating cranes/derricks and land
[[Page 47986]]
cranes/derricks on barges when hoisting personnel or hoisting over an
occupied cofferdam or shaft. The Agency determines that cranes need
anti two-block devices to prevent employees from being dropped and to
prevent loads from striking employees in the confined work environment
of a cofferdam or shaft. These safety considerations outweigh any
concern for damage to a device or unnecessary ``tripping'' during
marine operations.
The temporary alternative measures available when an anti two-block
device on a lattice-boom crane or derrick malfunctions are to clearly
mark the cable so that it can easily be seen by the operator at a point
that will give the operator sufficient time to stop the hoist to
prevent two-blocking, or to use a spotter to warn the operator to stop
the hoist.
For telescopic boom cranes, the temporary alternative measures
required are to clearly mark the cable so that it can easily be seen by
the operator at a point that will give the operator sufficient time to
stop the hoist to prevent two-blocking and to use a spotter when
extending the boom. OSHA determines that the alternative measures for
telescopic boom cranes must require the use of a spotter when extending
the boom because two-blocking can occur even when the cable hoist is
not being operated. As noted above, telescoping the boom out moves the
boom's block closer to the load end of the hoist cable, which can cause
two-blocking. A mark on the hoist cable in such instances will not warn
the operator that two-blocking is about to occur. Therefore, when
extending the boom, a spotter is required.
The proposed rule did not address the issue of anti two-block
protection for articulating cranes. Many such cranes are equipped with
forks at the end of the boom and do not have the potential for two-
blocking. However, those equipped with a load hoist present the same
potential for two-blocking as other cranes with load hoists. A trade
association pointed out that the ASME standard for articulating cranes,
ASME B30.22-1998, first required two-block protection effective
December 31, 1999. (ID-0206.1.) OSHA infers that articulating cranes
with boom hoists manufactured after December 31, 1999, were routinely
equipped with automatic two-block protection after that date.
Therefore, to treat such cranes in a manner similar to lattice boom
cranes and telescopic boom cranes, OSHA is adding Sec.
1926.1416(d)(3)(iii) to the final rule.
Paragraph (e) Category II Operational Aids and Alternative Measures.
Paragraph (e) of this section lists the required Category II
operational aids and the acceptable temporary alternative measures for
these aids. If any of these aids is not working properly, it must be
repaired no later than 30 days after the deficiency occurs. As noted
above, if the employer documents that it has ordered the necessary
parts within 7 calendar days from the occurrence of the deficiency, and
does not receive the part in time to complete the repair in 30 calendar
days, the repair must be completed within 7 calendar days of receipt of
the part. (For purposes of clarification, the Agency has added a
reference to Sec. 1926.1416(e) noting that the requirements of Sec.
1926.1417(j) are applicable. See further discussion at Sec.
1926.1417(j).)
Boom Angle or Radius Indicator: Paragraph (e)(1) requires a boom
angle or radius indicator that is readable from the operator's station
on all equipment. Section 1926.1401 defines ``boom angle indicator'' as
``a device which measures the angle of the boom relative to the
horizontal.'' This definition is identical to that in the SC&RF
Handbook. It is necessary to know the boom angle to determine the
crane's capacity from its load chart. The temporary alternative measure
is to measure the radii or boom angle with a measuring device.
Jib Angle Indicator: Paragraph (e)(2) requires a jib angle
indicator on all equipment with a luffing jib. The temporary
alternative measure is to measure the radii or jib angle with a
measuring device.
Boom Length Indicator: Paragraph (e)(3) requires a boom length
indicator on all equipment equipped with a telescopic boom. Section
1926.1401 defines a ``boom length indicator,'' as a device that,
``indicates the length of the permanent part of the boom (such as ruled
markings on the boom) or, as in some computerized systems, the length
of the boom with extensions/attachments.'' OSHA did not receive any
comments on the definition and is promulgating it as proposed. The
operator must know the length of the boom because it affects the
crane's capacity, as shown on the load chart. At least one of the
following must be used as a temporary alternative measures: mark the
boom with measured marks to calculate boom length; calculate boom
length from boom angle and radius measurements; or measure the boom
with a measuring device.
Load Weighing and Similar Devices: Proposed paragraph (e)(4)
required load weighing and similar devices on all equipment with a
rated capacity over 6,000 pounds and manufactured after March 29, 2003
(except derricks; a comparable provision for derricks is in Sec.
1926.1436(f)(3), discussed below). The framework of this proposed
paragraph was similar to the approach taken in sec. 5-1.9.9.2 of ASME
B30.5-2004, respecting these aids. The proposed standard permitted
employers to choose to outfit its equipment with either a load weighing
device, load moment (or rated capacity) indicator, or a load moment or
rated capacity limiter. The latter two terms are defined in Sec.
1926.1401. All three devices are intended to help the operator avoid
exceeding the equipment's rated capacity and thereby prevent the crane
from tipping over.
This proposed provision was limited to equipment (other than
derricks) manufactured after March 29, 2003. That was the date when
ASME B30.5 first called for all mobile cranes with a rated capacity
over 6,000 pounds to be equipped with load weighing devices. The
proposed provision was thus keyed to the date when the industry first
began widely manufacturing or equipping mobile cranes with load
weighing or load moment devices.
A trade association pointed out that ASME B30.5 does not apply to
articulating cranes and that the applicable consensus standard, ASME
B30.22, does not require the devices specified in paragraph (e)(4).
(ID-0206.1.) The commenter stated, however, that these are likely to be
required by the 2010 update of ASME B30.22.
As discussed in Sec. 1926.1400, evidence in the record shows that
many articulating cranes are currently equipped with automatic overload
prevention devices which, like the devices specified in this section,
are designed to avoid the possibility of tipover. Therefore, the
tipover hazard addressed by paragraph (e)(4) can be addressed for
newly-manufactured articulating cranes by requiring such cranes to be
equipped with either automatic overload prevention devices or one of
the devices specified in paragraph (e)(4). To achieve this objective,
OSHA is therefore revising proposed paragraph (e)(4). The requirement
in proposed paragraph (e)(4) is revised to exclude articulating cranes
and is renumbered paragraph (e)(4)(i) in the final rule. New paragraph
(e)(4)(i) includes temporary alternative measures based on calculations
from sources recognized by the industry. The proposed rule had provided
for calculations based on a ``reliable'' source or calculation method,
or ``by other equally reliable means.'' To avoid the
[[Page 47987]]
potentially subjective interpretations of ``reliable,'' OSHA is instead
requiring that the measurements be from a source typically relied on in
the industry.
A new paragraph (e)(4)(ii), applicable to articulating cranes, is
added. This new paragraph requires articulating cranes manufactured
more than one year after the effective date of the standard to be
equipped with either an automatic overload prevention device, a load
weighing device, a load moment (or rated capacity) indictor, or a load
moment (or rated capacity) limiter. Paragraph (e)(4)(ii) will protect
workers against articulating cranes tipping over while giving employers
a choice of means to achieve this objective. The temporary alternative
measure required under paragraph (e)(4)(ii) is the same as that
required under paragraph (e)(4)(i).
A commenter informed OSHA that New York City requires a load
weighing or similar device on cranes manufactured after December 30,
1993, and requested that the final rule allow local governments to
impose stricter requirements. (ID-0156.1.) Whether local governments
can impose stricter requirements than provided under this final rule is
discussed under federalism in section V.D of this preamble.
Proposed paragraph (e)(5) required two future operational aids--an
outrigger position sensor/monitor and a hoist drum rotation indicator--
on all equipment manufactured more than one year after the effective
date of this standard.\82\ As discussed in Sec. 1926.1404, certain
types of equipment are equipped with stabilizers rather than
outriggers, and OSHA is modifying the language of proposed
``outrigger'' provisions to clarify that such provisions also apply to
equipment with stabilizers. Therefore, paragraph (e)(5)(i) is being
reworded in the final rule to apply to equipment with stabilizers as
well as outriggers. Paragraph (e)(5)(ii), which requires hoist drum
rotation indicators, is promulgated as proposed.
---------------------------------------------------------------------------
\82\ The proposed rule would have required these aids on
equipment manufactured after January 1, 2008. Here, as elsewhere,
OSHA believes that devices not commonly installed on equipment
should be not be required until more than one year after the
effective date of the final rule.
---------------------------------------------------------------------------
One commenter stated that deadman controls should be required on
all cranes. (ID-0156.1.) Section 1926.1435(d)(2)(viii) requires that
tower cranes have deadman controls, but C-DAC did not determined these
should be required on other types of cranes. This commenter has not
stated why it believes such controls are needed for safe operation of
other types of cranes. Accordingly, OSHA defers to C-DAC's judgment
that deadman controls should not be required on cranes other than tower
cranes.
Section 1926.1417 Operation
Section 1926.1417 addresses hazards associated with general
operation of equipment covered by this standard. Previously, 29 CFR
part 1926, subpart N primarily addressed safe operation by
incorporating national consensus standards and manufacturer
recommendations. For example, former Sec. 1926.550(b)(2) required
crawler, truck, and locomotive cranes to comply with the operation
requirements of ANSI B30.5-1968. The provisions in this section are
designed to update such requirements, make them more comprehensive, and
state them in a way that is clear and enforceable.
Paragraph (a)
Paragraph (a) of this section requires employers to comply with the
manufacturer procedures applicable to the operational functions of all
equipment covered by this standard, including the use of equipment with
attachments. ``Procedures'' is defined in Sec. 1926.1401 to include,
but not be limited to, ``instructions, diagrams, recommendations,
warnings, specifications, protocols, and limitations.''
Two commenters opposed this provision. The first, a representative
from the building industry, stated that it was ``problematic'' to
``literally require employers to become familiar with and obey to the
letter anything written by a manufacturer related to a crane, no matter
how unwise, unnecessary, or infeasible.'' (ID-0232.1.) The commenter
also explained that crane manufacturers fear tort liability, which
causes them to over-warn in their manuals, and suggested that employers
needed to be able to use common sense to separate over-warning from
serious recommendations. The commenter argued further that this
provision constituted a delegation of authority inconsistent with the
U.S. Constitution and the Occupational Safety and Health Act, and was
unsupported by the rulemaking record. A building industry trade
association agreed with the building industry representative's points
and advocated amending this provision to require operation of equipment
in a manner ``consistent with manufacturers' recommendations.'' (ID-
0214.1.) It also believed that the costs of complying with this
provision would be excessive.
OSHA disagrees with the suggestion that this provision is
problematic because of the possibility that some equipment manufacturer
may conceivably develop procedures which are ``unwise, unnecessary, or
infeasible.'' Neither commenter provided any specific examples or data
in support of this assertion, and it is unreasonable to think that
crane manufacturers would develop such procedures. Like all product
manufacturers, crane manufacturers want satisfied customers and repeat
business, and OSHA has no basis to conclude, as the commenters suggest,
that they will alienate their customers by recommending unnecessary
procedures that will reduce the usefulness and productivity of their
products. Moreover, there are sound reasons to determine that following
manufacturer procedures will result in both the safe and productive use
of cranes. The manufacturer of a large and complex piece of machinery
such as a crane is thoroughly familiar with the machine's design,
components, and capabilities and is well-positioned to develop the
procedures that enable the crane to be used effectively and safely. The
commenters provided no basis for OSHA to conclude that allowing crane
users to pick and choose which manufacturer recommendations to follow
will promote safety, and OSHA does not believe this is the case.
Moreover, C-DAC's members had vast experience in crane manufacturing
and use and were well-positioned to determine whether compliance with
manufacturer's recommendations will promote crane safety. They
concluded that it would. In the absence of additional evidence, OSHA
defers to C-DAC's experience.
OSHA also finds no merit in the building industry representative's
assertion that compliance with manufacturer recommendations should not
be required because manufacturers ``over-warn'' out of liability
concerns. The best way for manufacturers to avoid liability for
accidents involving their products is to recommend the precautions that
are needed to prevent such accidents, so their concern for tort
liability is fully consistent with the objective of this standard.
Regarding the delegation of authority issue, OSHA notes that
provisions similar to this one, including provisions in the prior
cranes standard in former Sec. 1926.550, have withstood judicial
scrutiny on every occasion on which they have been challenged.\83\ See,
e.g.,
[[Page 47988]]
Associated Builders & Contractors v. Miami-Dade County, 594 F.3d 1321;
Associated Builders & Contractors, Inc. v. Brock, 862 F.2d 63, 68-69
(3d Cir. 1988); Towne Constr. Co. v. Occupational Safety & Health
Review Comm'n, 847 F.2d 1187, 1189 (6th Cir. 1988) (finding the
physical impossibility of requiring OSHA independently to set safety
standards for every industry job classification and industrial
substance in the country justifies reliance on the fruits of private
efforts as governmental standards).
---------------------------------------------------------------------------
\83\ Among the many OSHA standards requiring compliance with
manufacturer information are: Sec. 1910.134, UI; Sec. 1910.184,
Slings; Sec. 1910.265, Sawmills; Sec. 1915.113, Shackles and
hooks; Sec. 1910.217, Mechanical power presses; Sec. 1926.451,
Scaffolds: General requirements; Sec. 1926.302, Power-operated hand
tools; and Sec. 1917.43, Powered industrial trucks.
---------------------------------------------------------------------------
The requirement in Sec. 1926.1417(a) to comply with manufacturers'
operating procedures is essentially the same as that imposed by former
Sec. 1926.550(a)(1) of the prior rule. As the commenter from the
building industry notes, former Sec. 1926.550(a)(1) was upheld against
a challenge that requiring compliance with manufacturer's
specifications and operating limitations is an illegal delegation of
authority to private persons. (ID-0232.1, citing Towne Construction, 12
BNA OSHC 2185 (OSHRC 1986) aff'd 847 F.2d 1187 (6th Cir. 1988).) The
Review Commission and the Sixth Circuit found that the prior rule's
delegation to manufacturers was circumscribed by other regulatory
requirements governing the design and construction of cranes. (See,
e.g., 12 BNA OSHC at 2186 noting design specifications in 29 CFR
1910.180(c)(1) applied to cranes covered by former Sec. 1926.550.) The
final rule contains design, construction and testing requirements that
are more comprehensive than those applicable under the prior rule.
These limitations on manufacturers' discretion are sufficient to defeat
a facial delegation challenge. 12 BNA OSHC at 2186, 847 F.2d at 1189.
See also Associated Builders and Contractors, 2010 WL 276669 *3 (OSHA's
adoption of consensus specifications for safe operation of cranes
``conforms with an intelligible principle'' and is therefore valid). To
require OSHA to independently determine and codify every safety
procedure for every configuration of every make and model of crane or
other equipment covered by this standard, as well as every attachment
or device that could be used with that equipment, would be unrealistic,
inefficient, and contrary to all jurisprudence on this issue. In light
of C-DAC's recommendations to include manufacturer procedures in
subpart CC, and based on the record as a whole, OSHA concludes that
requiring compliance with manufacturer procedures is an efficient and
appropriate means of ensuring safe maintenance, assembly and
disassembly, configuration, and operation of equipment covered by this
subpart. Therefore, OSHA is incorporating manufacturers' procedures and
recommendations into Sec. 1926.1417, and several other provisions of
this standard, where the Agency determines that it is the most
effective and appropriate way to accomplish the OSH Act goals.
Two commenters objected to OSHA's inclusion of manufacturer
``recommendations'' in the definition for equipment criteria. (ID-
0205.1; -0213.1.) The commenters, however, provide no justification for
distinguishing manufacturer recommendations from other manufacturer
procedures. C-DAC determined that manufacturer recommendations were an
appropriate means of ensuring the safe use of equipment, and OSHA
agrees. Manufacturer recommendations, like procedures, specifications,
prohibitions, etc., instruct the user how to use the equipment safely
and in a manner most consistent with the equipment's design.
Moreover, there is nothing novel in OSHA's reliance on manufacturer
recommendations. A number of OSHA standards already require compliance
with manufacturer recommendations. See, e.g., Sec. 1910.134,
Respirator protection; Sec. 1910.184, Slings. As noted above, the
former crane standard (in former Sec. 1926.550(a)) replaced by this
final rule included a broad prohibition based solely on manufacturer
recommendations: ``Attachments used with cranes shall not exceed the
capacity, rating, or scope recommended by the manufacturer.'' Yet no
court has invalidated an OSHA standard requiring compliance with
manufacturer recommendations, even though several containing such
language have been challenged. The commenters offer no new compelling
legal arguments for why OSHA should delete provisions requiring
compliance with manufacturer recommendations, and do not identify a
meaningful distinction between a manufacturer's recommendation,
procedure, instruction, or specification. Accordingly, OSHA is
requiring compliance with manufacturer recommendations as proposed.
Finally, with respect to the suggestion to permit alternate
procedures provided they are ``consistent with'' manufacturers'
procedures, the Agency concludes that amending this provision in that
manner would be unacceptable because it would lead to uncertainty over
what procedures are ``consistent with'' the manufacturers' recommended
procedures. Therefore, this provision is promulgated as proposed.
Paragraph (b) Unavailable Operation Procedures
Under paragraph (b)(1) of this section, in the event that the
manufacturer procedures for operation are unavailable, the employer
will be required to develop procedures necessary for the safe operation
of the equipment and its attachments. The employer will also be
required to ensure compliance with such procedures. ``Unavailable
procedures'' is defined in Sec. 1926.1401 as procedures that are no
longer available from the manufacturer, or have never been available
from the manufacturer. For instance, procedures that are in the
employer's possession but are not on the job site, would not be
considered unavailable under Sec. Sec. 1926.1417(b) and
1926.1441(c)(2), where the same term is used.
An example of a situation where procedures might be unavailable is
old equipment where the manufacturer is no longer in business. Even
where the original manufacturer became part of another company that is
still in business, in some cases the successor company no longer has
the original manufacturers' procedures for that equipment. In such
instances the employer will be required to develop and follow
substitute procedures.
Paragraphs (b)(2) and (b)(3) of this section specify qualifications
criteria for those who develop two aspects of the substitute
procedures. Under Sec. 1926.1417(b)(2), procedures for the operational
controls will have to be developed by a qualified person. As defined in
Sec. 1926.1401 of this standard, ``operational controls'' are levers,
switches, pedals and other devices for controlling equipment operation.
A qualified person has the requisite level of expertise to develop such
procedures in light of both the complexity of the factors that must be
considered and the nature of the operational controls.
Under paragraph (b)(3), operational procedures related to equipment
capacity would have to be developed and signed by a registered
professional engineer familiar with the equipment. The type and
complexity of engineering analysis that is needed to develop safe
procedures related to capacity necessitates that this work be done by a
registered professional engineer (RPE). In addition, because capacity
is so critical to safe operation, a signature by the RPE is needed to
ensure that this work is done with the requisite care. No comments were
submitted on this
[[Page 47989]]
provision; therefore, it is promulgated as proposed.
Paragraph (c) Accessibility of Procedures
Paragraph (c)(1) of this section requires employers to provide the
operator with ready access in the cab to the procedures applicable to
the operation of the equipment, including the following: Rated
capacities (load charts), recommended operating speeds, special hazard
warnings, and the instructions and operator's manual.
For the purposes of this standard, ``special hazard warnings'' are
warnings of site-specific hazards (for example, proximity of power
lines). This term is defined in Sec. 1926.1401 to differentiate these
site-specific warnings from all other general hazard warnings which are
common to typical construction worksites.
Previously, former Sec. 1926.550(a)(2) of subpart N required rated
capacities, recommended operating speeds, and special hazard warnings
to be posted on the equipment, and instructions and warnings to be
visible at the operator's station. Unlike Sec. 1926.1417(c)(1) of this
standard, it did not require the operator's manual to be accessible to
the operator.
OSHA concludes that the information in these materials, including
the operator's manual, is essential for safe crane operation. C-DAC
determined that this information is needed to help the operator avoid
performing operations beyond a crane's capacity and recommended
operating speed, and by increasing operator awareness of special
hazards related to a specific piece of equipment. In addition, C-DAC
determined that this information needs to be available to the equipment
operator in the cab so that the operator can obtain the information as
the need arises. If the information were not available in the cab,
operations would have to be delayed for the operator to leave the cab
and obtain the information elsewhere (or for someone else to obtain
them and bring them to the operator). The prospect of such a delay
would serve as a disincentive to obtaining the information and increase
the chance that operations would proceed without it.
A building industry trade association stated its belief that the
cost of obtaining and maintaining manufacturers procedures applicable
to operation of the equipment would be excessive, and stated that
OSHA's contention that such costs would be ``modest'' was not supported
by the rulemaking record. (ID-0214.1.) This commenter did not provide
any substantiation for this claim. Based on the absence of this
support, and on the absence of other comments raising a cost objection
related to this requirement, OSHA concludes that the cost of obtaining
and maintaining manufacturers' procedures for equipment operations is
not generally viewed as significant, especially when weighed against
the potential economic and human costs of a crane accident. Moreover,
as noted below, the trend toward providing operating manuals and
procedures via digital media and over the Internet is substantially
lowering costs for acquiring and maintaining such information.
Therefore, OSHA defers to C-DAC's experience and is promulgating this
provision as proposed.
It has become increasingly common for equipment to be supplied by
manufacturers with load capacities in electronic form. Because of the
potential for an electronic or other failure to occur that would make
that information inaccessible, Sec. 1926.1417(c)(2) addresses a
situation in which electronic or other failure makes such information
unavailable. Under this paragraph, where load capacities are available
in the cab only in electronic form and a failure makes the load
capacities inaccessible, this paragraph requires that the operator
immediately cease operations or follow safe shut-down procedures until
the load capacities become available again (in electronic or other
form). No comments were submitted on this provision; therefore it is
promulgated as proposed.
Paragraph (d)
This paragraph requires that operators refrain from engaging in any
practice that would divert their attention while operating the crane.
This includes the use of cell phones except when cell phones are used
for signal communications. Operating a crane is a complex task that
requires an operator's full attention to be performed safely. This
paragraph addresses the risk that an accident can occur if the
operator's full attention is not directed toward that task.
During the hearing, a witness from a lumber trade association
described the practice in which the operator controls an articulating
boom crane with a forklift attachment via remote controls and then
assists with the off-loading of the materials. (ID-0341.) He expressed
concern that the operator's participation in the off-loading of the
crane would violate Sec. 1926.1417(d)'s prohibition on ``any practice
that diverts his/her attention while actually engaged in operating the
crane.'' (ID-0341.) As a result, his company would need to use an
additional person for the delivery, raising costs. (ID-0341.)
Section 1926.1417(d) would not necessarily prohibit the activity
that the witness described. If the operator uses the remote controls to
position the articulating crane and lock it into position before off
loading the materials, and does not simultaneously operate the controls
and offload the materials, the operator would not be ``actually engaged
in operating the crane'' at the same time as he is off-loading the
crane. The operator would also not be considered to ``leave the
equipment unattended'' so long as the operator has immediate access to
the remote controls. See discussion of Sec. 1926.1417(e) below. No
other comments were submitted on this provision; therefore it is
promulgated as proposed.
Paragraph (e) Leaving Equipment Unattended
Paragraph (e)(1) of this section specifies when the operator must
be at the controls for safety-related reasons. These include making
necessary adjustments to keep the load in a safe position, moving the
load where necessary for reasons of safety (such as for the safety of
employees working with or near the load), and responding to emergencies
that may arise during lifting operations. Previously, under 29 CFR part
1926, subpart N, the operator of a crawler, locomotive, or truck crane
was prohibited from leaving the controls while a load is suspended.
In the experience of C-DAC members, this requirement was routinely
breached when the load is ``held suspended,'' that is, without need for
adjustment of the load's or the equipment's position for an extended
period. In such circumstances, the operator does not need to manipulate
the controls for the period of time that the load is suspended and it
was a common practice for the operator to leave the controls. To
address this problem, C-DAC proposed that OSHA establish criteria that
allow the operator to leave the controls when it is safe to do so
rather than to simply continue the existing rule unchanged. (Note that
the suspension of working gear, such as slings, spreader bars, ladders,
and welding machines, is addressed separately in Sec.
1926.1417(e)(2).)
Several commenters from the materials delivery industry noted that
various types of equipment in that industry can be operated by remote
control and expressed concern that Sec. 1926.1417(e)(1) would prohibit
the use of those remote controls and thereby require additional
personnel to perform the same task. (ID-0184.1; -0206.1.) To
[[Page 47990]]
be clear, the new standard does not prohibit the use of remote
controls. During the hearing on this rulemaking, a witness from a
lumber trade association testified that the use of portable radio
remote controls is common, and provided examples of operators with
their remotes strapped around their waists or their shoulders. (ID-
0341; -0345.13.) He explained that the ``operator is physically located
at the same location as the remote control and is therefore able to
perform controlled operations as quickly as an operator who is seated
at the top seat controls'' and ``can also be positioned to ensure that
there's no obstructed view.'' (ID-0341.) Such use would not be
prohibited. Where an operator takes the remote controls out of the cab,
keeps the controls within reach in the same manner as if in the cab,
and is able to use the remote controls to control the equipment as
effectively as if in the cab, the operator has not left the controls
within the meaning of Sec. 1926.1417(e). Therefore, the operator is
not subject to the conditions of Sec. Sec. 1926.1417(e)(1)(i) through
(iv).
Section 1926.1417(e) requires that the operator not leave the
controls while the load is suspended except when four conditions,
outlined in Sec. Sec. 1926.1417(e)(1)(i) through (e)(1)(iv), are met.
OSHA has revised the introductory text to make it clear that each one
of the conditions in Sec. Sec. 1926.1417(e)(1)(i) through (e)(1)(iv)
must be met for the operator to leave the controls.
Paragraph (e)(1)(i) requires the operator to remain adjacent to the
equipment and not engage in any other duties. This paragraph will not
only prevent unauthorized use of the crane by persons who are not
competent crane operators but also allow the operator to quickly access
the controls in case the equipment or load inadvertently moves.
Paragraph (e)(1)(ii) requires the load to be held suspended for a
period of time exceeding normal lifting operations. As explained above,
these are instances when the load is ``held suspended,'' that is,
without need for adjustment of the load's or the equipment's position--
for an extended period. These are circumstances in which the operator
will not need to manipulate the controls. Such circumstances must be
for a period of time in excess of the periods that occur during normal
lifting operations.
For example, during the construction of a structure, a large
subassembly is being attached to another part of the structure. After
the subassembly has been initially connected, it is held suspended
(that is, without need for adjustment of position) for support for
several hours while the final connections are made. This period exceeds
normal lifting operations. In this example, the criterion of Sec.
1926.1417(e)(1)(ii) would be met.
Another, contrasting example is the following: A steel structure is
being erected. When installing the steel beams, the operator holds the
beam suspended (typically for several minutes) while it is initially
connected. Holding the beam suspended in such instances is a normal
part of the steel erection process. In this example the criterion in
Sec. 1926.1417(e)(1)(ii) would not be met and the operator cannot
leave the controls.
Paragraph (e)(1)(iii) requires the competent person to determine
that it is safe for the operator to leave the controls and implement
measures necessary to restrain the boom hoist and telescoping, load,
swing, and outrigger functions. This provision addresses the hazard of
inadvertent movement while the controls are unattended.
Paragraph (e)(1)(iv) requires barricades or caution lines, and
notices to be erected to prevent all employees from entering the fall
zone. Furthermore, under this paragraph no employees would be permitted
in the fall zone, including those listed in Sec. Sec. 1926.1425(b)(1)
through (3), (d), or (e). This is necessary because the added margin of
safety that results from the operator being at the controls would not
be present in these circumstances.
A labor representative recommended retention of the previous
prohibition of leaving any unattended loads suspended because it
believed that the four conditions for the exemption were unclear and
unenforceable. (ID-0199.1.) Specifically, the commenter stated that (1)
The term ``adjacent to the equipment'' needed to be further explained
or quantified; (2) further guidance was needed to explain the meaning
of the phrase ``a period of time exceeding normal operations;'' (3) the
Agency needs to clarify that the equipment operator can be the
``competent person'' referred to in this section; and (4) the proposed
requirement to erect barriers or caution lines to prevent employees
from entering fall zones are infeasible in many construction zones.
Regarding the commenter's first two points, in light of the extreme
variability of equipment types, loads lifted, and construction site
conditions, OSHA determines it is not possible to use more precise
language without making the rule underinclusive and/or overinclusive.
Specifying a precise distance in lieu of saying ``adjacent to the
equipment,'' and a precise time in lieu of ``a period of time exceeding
normal operations,'' as the commenter suggests, would not be practical
in light of the numerous variables that affect these distances and
times on construction sites. OSHA also rejects the commenter's
suggestion that the previous prohibition be retained if it is not
possible to use more precise language. OSHA concludes that this is an
area where employers can be afforded flexibility without detracting
from safety, and that the limited conditions under which it is
permissible to leave a suspended load unattended will accomplish this
objective.
Regarding the third point, the answer is ``yes,'' an equipment
operator can be a ``competent person'' for purposes of this section if
he or she meets the requirements of the Sec. 1926.1401 definition of
that term. Finally, where conditions in a construction site exist that
prevent erection of barriers or caution lines as prescribed by this
section, Sec. 1926.1417(e) prohibits employers from using this
exception to the general prohibition of leaving suspended loads
unattended.
Proposed paragraph (e)(2) stated that the provisions in paragraph
(e) do not apply to working gear, which includes slings, spreader bars,
ladders, and welding machines, where the load is not suspended over an
entrance or exit.
The Agency noted in the proposal that the reference to paragraph
(e) was a drafting error and that the appropriate reference was to
paragraph (e)(1). In addition, the provision as proposed contained two
incidences of the word ``not'' which could lead to confusion.
Therefore, the Agency noted in the proposal that it was considering
changing the language to state that the provisions in Sec.
1926.1417(e)(1) do not apply to working gear where the working gear is
suspended over an area other than an entrance or exit.
In the proposed rule, OSHA noted that it was common practice for
employers to leave lightweight items suspended overnight to prevent
theft and stated that this provision was only intended to apply to
working gear whose weight was negligible relative to the capacity of
the equipment. Four commenters believed that the proposed wording of
Sec. 1926.1417(e)(2) was overly broad to accomplish this purpose
because it did not limit the weight of the suspended working gear
relative to the capacity of the equipment and could therefore allow a
load that placed a significant strain on the equipment to be suspended
overnight. (ID-0122.1; -0172.1; -0178.1; -0199.1.) OSHA agrees with
these commenters that this
[[Page 47991]]
provision should be clarified and, in the final rule, has made explicit
what was stated in the preamble to the proposed rule: that the
provision only applies where the weight of the working gear is
negligible relative to the lifting capacity of the equipment.
Paragraph (f) Tag-Out
Paragraph (f)(1) Tagging Out of Service Equipment/Functions
Where the employer has taken the equipment out of service, this
paragraph requires that the employer place a tag in the cab stating
that the equipment is out of service and is not to be used. Where the
equipment remains in service but the employer has taken a function out
of service, this paragraph requires that the employer place a tag in a
conspicuous position stating that that function is out of service and
is not to be used. This paragraph is designed to prevent hazards
associated with workers inadvertently attempting to use out-of-service
equipment or a function that is out of service.
Paragraph (f)(2) Response to ``Do Not Operate''/Tag-Out Signs
If there is a warning sign on the equipment or starting control,
paragraph (f)(2)(i) of this section prohibits the operator from
activating the switch or starting the equipment until the sign is
removed by someone authorized to remove it or until the operator can
verify that (A) no one is servicing, working on, or otherwise in a
dangerous position on the machine, and (B) the equipment has been
repaired and is working properly. Similarly, under Sec.
1926.1417(f)(2)(ii), when there is a warning sign on any other switch
or control, the operator will be prohibited from activating that switch
or control until the sign has been removed by an individual authorized
to remove it, or until the operator meets the two requirements of Sec.
1926.1417(f)(2)(i), described above.
These provisions will prevent two types of hazards. First, since
the machine is out of service, there is a risk that an employee
servicing, working on, or otherwise in a dangerous position on it is
not expecting it to be activated and would be injured if it were
activated. Second, if an employee does not know that the equipment is
malfunctioning or has a function that is not working properly, an
employee could inadvertently try to operate it with the result that the
equipment will not work as intended, causing unintended movement or a
collapse.
Subpart N of the former rule addressed this issue through sec. 5-
3.1.3g of ANSI B30.5-1968, which states: ``If there is a warning sign
on the switch or engine starting controls, the operator shall not close
the switch or start the engine until the warning sign has been removed
by the person placing it there.'' Instead of requiring that the sign be
removed by the person who placed it, Sec. 1926.1417(f)(2) permits it
to be removed by an authorized person and, as an alternative, permits
the operator to start the equipment after verifying that no worker is
in a dangerous area and that the equipment has been repaired and is
working properly. OSHA concludes that either alternative would achieve
the safety purpose of the tag-out because it would ensure that a
knowledgeable and responsible person, either the operator or another
authorized person, verifies that repairs are complete and all workers
are in a safe position before the equipment can be started.
As discussed above, the operator will be permitted to start
equipment that is tagged out, or activate a tagged-out switch, only if
the procedures specified in Sec. 1926.1417(f)(2)(i) are met. In
reviewing this provision during the proposal stage, the Agency noted
that these procedures were not as comprehensive as those in the general
industry standard for the control of hazardous energy (lockout/tagout),
which are listed in Sec. Sec. 1910.147(e)(3)(i) through (iii).\84\ The
Agency requested public comment on whether procedures similar to those
in Sec. Sec. 1910.147(e)(3)(i) through (iii) \85\ would be feasible
and appropriate for cranes/derricks used in construction.
---------------------------------------------------------------------------
\84\ Section 1910.147 is not applicable to construction (see
Sec. 1910.147(a)(ii)(A)).
\85\ These general industry provisions state:
(i) Verification by the employer that the authorized employee
who applied the device is not at the factory;
(ii) Making all reasonable efforts to contact the authorized
employee to inform him/her that his/her lockout or tagout device has
been removed; and
(iii) Ensuring that the authorized employee has this knowledge
before he/she resumes work at that facility.
Section 1910.147(e)(3)(i) through (iii).
---------------------------------------------------------------------------
Two commenters opposed broadening the requirements along the lines
of the requirements in Sec. Sec. 1910.147(e)(3)(i) through (iii),
stating that the general industry standards were not appropriate for
cranes and derricks used in construction. (ID-0205.1; -0213.1.) A third
commenter believed that the Sec. 1910.147(e)(3) procedures were
feasible and appropriate. (ID-0144.1.) A fourth commenter recommended
that the tag-out requirements be upgraded to a lock-out requirement to
provide greater worker protection. (ID-0199.1.) A fifth commenter
agreed that a lock-out requirement would provide superior protection to
the proposed tag-out proposal, but that locking out was not feasible on
some equipment, especially older equipment. (ID-0187.1.) That commenter
recommended that the requirement be upgraded to a lock-out requirement
where feasible, but remain a tag out procedure where lock out was not
feasible. Upon consideration of all these comments, OSHA concludes that
the record does not clearly indicate that adding a lock-out requirement
as suggested by the last two commenters is needed to ensure safety and,
as the one commenter noted, would not be feasible on all equipment.
Instead, the Agency concludes that the tag-out requirement in the
proposed rule contains clear and concise restrictions on the conditions
under which equipment can be brought back into service and will ensure
that equipment is not started when employees are in a danger zone.
Therefore, this section is promulgated as proposed.
Paragraph (g)
This paragraph requires the operator to verify, before starting the
engine, that all controls are in the proper starting position and that
all personnel are in the clear. Requiring operators to check that all
controls are in their proper starting positions will prevent unintended
movement of the equipment when the engine is initially started.
Similarly, requiring operators to ensure that all personnel are in the
clear will prevent personnel from being injured in the event that some
aspect of the equipment moves upon start-up. No comments were submitted
on this paragraph; therefore it is promulgated as proposed.
Paragraph (h) Storm Warning
When a local storm warning has been issued, this paragraph requires
the competent person to determine whether it is necessary to implement
manufacturer recommendations for securing the equipment. This provision
was designed to prevent hazards that could arise from severe weather
including inadvertent movement and crane collapse. High-speed winds in
particular can affect both the crane and the load, reducing the rated
capacity of the crane and affecting boom strength. No comments were
submitted on this paragraph; therefore it is promulgated as proposed.
Paragraph (i) [Reserved.]
Paragraph (j)
Under paragraph (j)(1) of this section, when the operator
determines that an adjustment/repair is necessary, the
[[Page 47992]]
operator is required to promptly inform, in writing, the individual
designated by the employer to receive such information, as well as the
next operator in cases where there are successive shifts. OSHA revised
the organization of the proposed provision for clarity. This
reorganization involved removing the introductory sentence that
operators be familiar with the equipment and its proper operation
because this sentence merely described an enabling condition necessary
for operators to identify any necessary repairs and adjustments.
This paragraph addresses the need to identify problems that may
develop with the equipment during operations. Early recognition of such
problems by the operator will help prevent accidents that could result
from continued operation of equipment that needs adjustment and/or
repair. In the Committee's experience, operators who are familiar with
the equipment and its proper operation can recognize such equipment
anomalies and problems. By requiring that information about needed
adjustments and/or repairs be provided to the individual designated by
the employer to receive it, this paragraph will facilitate the
correction of those problems.
The rule does not specify any particular job title for the person
to whom the operator would be required to provide this information
because different employers may assign the responsibility of receiving
such information to different job classifications.
Providing this information to the next operator in cases where
there are successive shifts (that is, shifts that have no break between
them) will ensure that the next operator is aware of this information
and will be able to take appropriate action.
One commenter recommended that the information be transmitted in
written form. (ID-0132.1.) OSHA agrees with this comment primarily
because written information would be more easily passed on between
shifts. OSHA has, therefore, revised Sec. 1926.1417(j) to specify that
the notification of necessary adjustments or repairs must be in
writing.
Additionally, OSHA added Sec. 1926.1417(j)(2) to require employers
to notify, at the beginning of each shift, all affected employees of
any necessary adjustments or repairs. This requirement will allow all
employees affected by the operation of the equipment to be notified of
any outstanding repairs or adjustments, and provides them with
information about alternative measures implemented by the employer.
Affected employees are any employees exposed to equipment-related
hazards; such employees include, but are not limited to, any employee
in the fall zone of the load, signal persons, riggers, operators, load
handlers, and lift directors. OSHA concludes that this provision is
necessary to allow employees to adjust their work practices following
implementation of the alternative measures.
The Agency finds this modification to be consistent with the
requirements throughout this subpart with respect to sharing
information about equipment-related hazards. This added provision
merely requires employers to take the information acquired under Sec.
1926.1417(j)(1) and distribute it to affected employees. Employers may
distribute this information by any effective means available.
Paragraph (k)
This paragraph prohibits safety devices and operational aids from
being used as a substitute for the exercise of professional judgment by
the operator. Such devices and aids do not displace the need for
operators to apply their professional judgment because the devices and
aids can malfunction and lead to the types of safety hazards they are
designed to prevent. No comments were submitted on this paragraph;
therefore it is promulgated as proposed.
Paragraph (l) [Reserved.]
Paragraph (m)
If the competent person determines that there is a slack rope
condition requiring re-spooling of the rope, this paragraph requires
that before starting the lift, it must be verified that the rope is
seated on the drum and in the sheaves as the slack is removed. This
will prevent a loose coil of rope from becoming cross-coiled on the
drum, a portion of the rope coming off the drum altogether, or the rope
being pulled alongside (instead of seating in) a sheave. Each of these
conditions can lead to sudden failure of the rope. No comments were
submitted on this paragraph; therefore it is promulgated as proposed.
Paragraph (n)
This paragraph requires the competent person to adjust the
equipment and/or operations to address the hazards posed by wind, ice
and snow on equipment capacity and stability. In the proposed rule, the
person would have been required to ``consider the effect'' of those
elements, but OSHA is clarifying in the final rule that the competent
person must actually take steps such as re-calculating a lower load
capacity, stabilizing the equipment, or even postponing a lift. Wind
can reduce capacity by imposing loads on the equipment, which can also
reduce stability. Ice and snow can also reduce capacity and stability
when it accumulates on the equipment. There are numerous variables
involved in determining the effects of wind, ice and snow in any
particular circumstance, (for example, the extent to which the crane is
operating below its rated capacity, the sail effect presented by the
load, the rate at which ice or snow is accumulating, and whether the
snow is wet or light). No comments were submitted on this paragraph;
therefore it is promulgated as proposed with the one change noted
above.
Paragraph (o) Compliance With Rated Capacity
Section 1926.1417(o)(1) requires employers to ensure that equipment
is not operated beyond its rated capacity. Overloading a crane or
derrick can cause it to collapse, with potentially catastrophic
consequences. This basic safeguard has long been recognized in the
industry as crucial and is designed to prevent such accidents. (See
additional discussion at 73 FR 59792, Oct. 9, 2008).
Section 1926.1417(o)(2) requires employers to ensure that operators
are not required to operate the equipment in a manner that would exceed
its rated capacity, in violation of Sec. 1926.1417(o)(1) above. This
provision reinforces the general prohibition of Sec. 1926.1417(o)(1)
by making it a separate violation for an employer to expressly require
an operator to exceed the equipment's rated capacity. It is designed to
avoid a situation where an employer pressures an operator to conduct a
lift that exceeds the equipment's rated capacity to avoid the time and
expense associated with bringing in larger capacity equipment.\86\
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\86\ In some instances the overcapacity problem can be avoided
by repositioning the crane (for example, by moving the crane so that
the lift can be performed at a higher boom angle). However, even in
those instances some time (and associated expense) is involved.
---------------------------------------------------------------------------
In the experience of C-DAC members, employers sometimes will
attempt to lift loads that exceed a crane's rated capacity in the
belief that the rated capacity is sufficiently conservative to perform
the lift. In some such cases, the employer assumes that a safety factor
is built into the capacity rating and that the crane actually has a
higher capacity than its rating. In the C-DAC discussions of this
issue, members explained that while equipment capacity ratings are
developed with
[[Page 47993]]
consideration of a safety factor, that safety factor is not intended by
the manufacturer to be treated as excess capacity. There are numerous,
complex considerations used by manufacturers in setting the capacity
rating. Employers cannot safely assume that, in any particular
situation, they will not need the benefits conferred by the safety
factor.
There continue to be a significant number of injuries and
fatalities resulting from equipment overturning. Although it has long
been a requirement not to exceed the equipment's rated capacity, a
significant number of overturning incidents are caused by exceeding
rated capacity. A study of fatal accidents involving cranes in the U.S.
construction industry for 1984-1994, based on investigations of
reported accidents conducted by OSHA and states with OSHA-approved
safety and health programs, showed that 22 deaths resulted from
overloaded cranes. A. Suruda, M. Egger, & D. Liu, ``Crane-Related
Deaths in the U.S. Construction Industry, 1984-94,'' p. 12, Table 9,
The Center to Protect Workers' Rights (Oct. 1997). (ID-0013.) By
stressing the need both to comply with the rated capacity and to
separately preclude employers from requiring operators to exceed the
rated capacity, paragraphs (o)(1) and (o)(2) should prevent this type
of accident. No comments were received on these paragraphs, and they
are promulgated as proposed.
Another cause of injuries and fatalities from overturning equipment
is the use of unreliable information on load weight. OSHA concludes
that one of the ways these incidents can be reduced is to require that
load weight be verified by a reliable means.
Under Sec. 1926.1417(o)(3), Load weight, the operator is required
to verify that the load is within the rated capacity of the equipment
by using the procedures in either Sec. 1926.1417(o)(3)(i) or (ii).
Under Sec. 1926.1417(o)(3)(i), the weight of the load must be
determined in one of three ways: from a source recognized by the
industry, by a calculation method recognized by the industry, or by
other equally reliable means. An example of verifying the load weight
from a source recognized by the industry would be where the load is
mechanical equipment and the weight is obtained from its manufacturer.
The proposed rule had provided for the weight of the load to be based
on a ``reliable source.'' To avoid the potentially subjective
interpretations of ``reliable,'' OSHA is instead requiring in the final
rule that the measurements be from a source typically relied on in the
industry.
An example of a calculation method recognized by the industry would
be the following: The load is a steel I-beam. After measuring the
thickness of the steel and the I-beam's other dimensions, the operator
uses an industry table that shows weight per linear foot for a beam of
these dimensions. The operator then calculates the beam's weight using
that information. In the proposed rule calculations would be based on a
``reliable source.'' To avoid the potentially subjective
interpretations of ``reliable,'' OSHA is instead requiring in the final
rule that the calculations be based on a source typically relied on in
the industry.
If the weight of the load is determined under Sec.
1926.1417(o)(3)(i), the information about how the load weight was
determined must be provided to the operator, prior to the lift, upon
the operator's request. This provision is included to help ensure that
the operator has the information necessary to verify that the load is
within the rated capacity of the equipment.
One commenter suggested that this section be amended to
specifically include as a reliable source the personal experience of
the operator with loads of similar size and materials. (ID-0232.1.)
OSHA rejects that suggestion because it is not convinced by any
evidence in the record that all operators, regardless of whether the
operator is experienced or has been on the job for a few weeks, are
capable of producing an accurate, reliable estimate of the load
weights. For example, an operator may have recently lifted precast
concrete sections that, based on date provided by the manufacturer,
weighed 5 tons each. The operator may be called upon to lift other
precast concrete sections of unknown weight that are actually 10%
heavier than those lifted earlier. It is unlikely that the heavier
sections would be significantly different in appearance than those that
weigh 10% less, and the operator may mistakenly underestimate the
weight of the sections if permitted to estimate load weight based on
his or her personal experience with loads of similar size.
Paragraph (o)(3)(ii) establishes an alternative procedure that does
not require the employer to determine the actual weight of the load
under certain circumstances. Under paragraph (o)(3)(ii), the operator
would have to begin hoisting the load to determine if it exceeds 75
percent of the maximum rated capacity at the longest radius that will
be used during the lift operation, using a load weighing device, load
moment indicator, rated capacity indicator, or rated capacity limiter.
If the load does not exceed 75 percent of the maximum rated capacity,
the lift can be conducted without determining the weight of the load.
This verification procedure \87\ incorporates a sufficient margin of
error and would be adequate to ensure that the crane's rated capacity
will not be exceeded. If, however, the load does exceed 75 percent of
the maximum rated capacity, then the operator may not proceed with the
lift until he/she verifies the weight of the load in accordance with
Sec. 1926.1417(o)(3)(i). No comments were received on this paragraph,
and it is promulgated without change from the proposed rule.
---------------------------------------------------------------------------
\87\ The operator would still be required to use his or her
professional judgment in determining whether the load exceeds the
capacity of the equipment. As discussed above, proposed Sec.
1926.1417 (k) would prohibit sole reliance by the operator on an
operational aid, such as a load weight device, for ensuring that the
equipment's capacity will not be exceeded. The procedure in proposed
Sec. 1926.1417(o)(3)(ii) is a verification procedure--it would
verify that the operator's estimate is at least correct in terms of
not exceeding 75% of the equipment's rated capacity (at the longest
radius that will be used). If, for example, the load weight device
yields a figure that is significantly below what the operator
estimates to be the true weight, the operator would need to reliably
determine the weight of the load before proceeding with the lift.
---------------------------------------------------------------------------
Paragraph (p)
This paragraph requires that the boom or other parts of the
equipment not contact any obstruction. No comments were submitted on
this paragraph, and it is promulgated as proposed.
Paragraph (q)
This paragraph requires that the equipment not be used to drag or
pull loads sideways. This is to prevent the sideloading that occurs
when a load is dragged or pulled sideways. Sideloading can buckle the
boom, damage the swing mechanism, or overturn the crane (such as when
the boom is at a high angle). No comments were submitted on this
paragraph, and it is promulgated as proposed.
Paragraph (r)
Paragraph (r) of this section applies to wheel-mounted equipment
and requires that no loads be lifted over the front area, except as
permitted by the manufacturer. Wheel-mounted equipment typically is not
designed to lift loads over the front area. Equipment that is not so
designed will likely tip over or otherwise fail when lifting loads over
the front area. If the equipment is specifically designed for loads to
be lifted over the front area (such as where equipped with a front
outrigger for support and stabilization for this purpose), the operator
must follow the
[[Page 47994]]
manufacturer's procedures for doing so. No comments were submitted on
this paragraph; it is therefore promulgated as proposed.
Paragraph (s)
Each time an operator handles a load that is 90% or more of the
maximum line pull, Sec. 1926.1417(s) requires the operator to test the
brakes by lifting the load a few inches and applying the brakes. In
duty cycle and repetitive lifts where each lift is 90% or more of the
maximum line pull, this requirement applies to the first but not to
successive lifts, because the operator would have already determined
from the initial test that the brakes are sufficient. The brake test
required by this paragraph is designed to ensure that the brakes are
sufficient to handle loads close to their design capacity before
lifting the load high off the ground. No comments were submitted on
this paragraph, and it is promulgated as proposed.
Paragraph (t)
This paragraph requires that neither the load nor the boom be
lowered below the point where less than two full wraps of rope remain
on their respective drums. This provision is designed to ensure that
the rope is not unspooled to the point where the rope would become
disconnected from the drum. No comments were submitted on this
provision, and it is promulgated as proposed.
Paragraph (u) Traveling With a Load
Paragraph (u)(1) of this section prohibits traveling with a load if
the practice is prohibited by the manufacturer. If the manufacturer
does not prohibit this practice, the equipment may travel with a load,
but only if the requirements of paragraph (u)(2) are met. Paragraph
(u)(2) of this section sets forth three procedures that employers would
have to follow when traveling with a load: a competent person must
supervise the operation; the determinations of the competent person
must be implemented; and for equipment with tires, the tire pressure
specified by the manufacturer must be maintained.
During discussions of this issue, C-DAC members noted the dynamic
effects of traveling with a load impose additional and/or increased
forces on crane components. Unless the crane has been designed to
handle these types of forces and force levels, they can cause component
failure, collapse, instability or overturning. The Committee concluded
that the manufacturer has the expertise to ascertain its equipment's
capabilities. Therefore, the Committee recommended that where the
manufacturer has prohibited traveling with the load, the operator must
comply with such a determination to ensure safety. (For additional
explanation, see 73 FR 59794, Oct. 9, 2008.) No comments were submitted
on these provisions and they are promulgated as proposed.
Paragraph (v)
This paragraph requires that rotational speed of the equipment be
such that the load does not swing out beyond the radius at which it can
be controlled. Like paragraph (q) of this section, discussed above,
this provision is designed to prevent the hazard of sideloading, which
occurs when the load swings to either side of the boom tip, rather than
its appropriate position directly beneath the boom tip. When the load
is not directly under the boom tip, sideloading occurs and decreases
capacity. This hazard can lead to tip-over or boom failure. No comments
were submitted on this paragraph, and it is promulgated as proposed.
Paragraph (w)
This paragraph requires that a tag or restraint line be used if
necessary to prevent the load from rotating if that would be hazardous.
No comments were submitted on this paragraph, and it is promulgated as
proposed.
Paragraph (x)
This paragraph requires that the brakes be adjusted in accordance
with manufacturer procedures to prevent unintended movement. This
requirement applies to all brakes on equipment covered by this
standard, including brakes used to control the lowering of the load and
those used to stop the equipment while it is traveling. C-DAC noted
that improper adjustment can cause a delay in the onset of braking
after the operator attempts to activate the brake and can also diminish
the brake's capacity. Brakes are critical to the safe operation of the
equipment and must be properly adjusted to serve their safety function.
(See additional explanation at 73 FR 59795, Oct. 9, 2008.) No comments
were submitted on this paragraph; it is promulgated as proposed.
Paragraph (y)
This paragraph requires that the operator obey a stop or emergency
stop signal, regardless of who gives the signal. Any person on a
worksite may observe a hazardous condition that is not visible to or
recognized by the crane operator and that can only be avoided if the
equipment stops immediately, so it is imperative that the operator
respond immediately to any such signal by anyone. No comments were
submitted on this paragraph; it is promulgated as proposed.
Paragraph (z) Swinging Locomotive Cranes
Pursuant to this paragraph, a locomotive crane must not be swung
into a position where railway cars on an adjacent track could strike
it, until it is determined that cars are not being moved on the
adjacent track and that proper flag protection has been established.
The Agency is including this paragraph to prevent contact between the
locomotive cranes and railway cars, and notes comparable requirements
in Sec. 1910.180(i)(6) and sec. 5-3.4.4 of ANSI B30.5-1968. No
comments were submitted on this paragraph, and it is promulgated with
only one modification. The proposed rule incorporated an additional
determination of whether it would be ``reasonably foreseeable'' that
other railway cars on an adjacent track could strike the locomotive
crane. OSHA concludes that when a locomotive crane swings into a
position where it is physically possible for a railway car on an
adjacent track to strike it, a hazard is present and the additional
language would serve only to generate confusion about the appropriate
response to that hazard. The concepts of reasonableness and
forseeability are typically raised during legal processes and would be
factored into those processes in accordance with law.
Paragraph (aa) Counterweight/Ballast
Section 1926.1417(aa)(1) contains counterweight/ballast
requirements that apply to equipment other than tower cranes and are
intended to prevent unintended movement, tipover, and collapse. As
noted in Sec. 1926.1417(aa)(2), requirements regarding counterweight/
ballast for tower cranes are found in Sec. 1926.1435(b)(8).
Section 1926.1417(aa)(1)(i) requires that equipment not be operated
without the counterweight or ballast in place as specified by the
manufacturer.
Section 1926.1417(aa)(1)(ii) prohibits the employer from exceeding
the maximum counterweight or ballast specified by the manufacturer for
the equipment. Exceeding that maximum could result in component
failure, which could cause unintended movement, tipover or collapse. No
comments were submitted on this provision, and it is promulgated as
proposed.
[[Page 47995]]
Section 1926.1418 Authority To Stop Operation
This section provides that whenever there is a concern as to
safety, the operator has the authority to stop and refuse to handle
loads until a qualified person has determined that safety has been
assured. Section 1926.1401 defines ``qualified person'' as a person
who, by possession of a recognized degree, certificate, or professional
standing, or who by extensive knowledge, training and experience,
successfully demonstrated the ability to solve/resolve problems
relating to the subject matter, the work, or the project.
Section 1926.1418 continues the long-standing requirements under
subpart N and current consensus standards. (See former Sec.
1926.550(b)(2), incorporating by reference ANSI B30.5-1968, sec. 5-
3.1.3(d).\88\) As discussed in the proposed rule preamble, a capable
equipment operator is highly knowledgeable in matters affecting
equipment safety and is well qualified to determine whether an
operation presents a safety concern (see 73 FR 59795-59796, Oct. 9,
2008). Under the provision, operations would be prohibited from
resuming ``until a qualified person had determined that safety has been
assured,'' meaning that operations could resume only after the
qualified person either: (1) assesses the factors that led the operator
to stop and refuse to handle the load and determines that there is not,
in fact, a safety hazard, or (2) after corrective action has been
taken, determines that there is no longer a safety hazard.
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\88\ Current consensus standards specify that an operator with a
safety concern must raise that concern with a supervisor before
proceeding with a lift. See sec. 5-3.1.3(d) of ASME B30.5-2004,
``Mobile and Locomotive Cranes,'' sec. 2-3.1.7 of ASME B30.2-2001,
``Overhead and Gantry Cranes,'' sec. 3-3.1.3(d) of ASME B30.3-1996,
``Construction Tower Cranes,'' sec. 6-3.2.3 of ASME B30.6-2003,
``Derricks,'' and other standards in the ASME B30 series.
---------------------------------------------------------------------------
One commenter argued that OSHA lacks the authority to promulgate
Sec. 1926.1418.\89\ (ID-0232.1.) First, the commenter contended that
the provision exceeds the Agency's standards-setting authority under
sec. 3(8) of the OSH Act. Second, it expresses concern that Sec.
1926.1418 circumvents the limitations on OSHA's ability to grant
employees (i.e., crane operators) stop-work authority. In support of
its position, the commenter cited the U.S. Supreme Court opinions in
Industrial Union Dep't, AFL-CIO v. American Petroleum Institute \90\
and Whirlpool Corp. v. Marshall \91\.
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\89\ The commenter nominated a C-DAC member who did not dissent
on this section of the standard. The commenter has not explained why
it has changed its position from the one taken by their C-DAC member
during negotiations. In light of the unexplained inconsistency of
its position, the Agency accords diminished weight to the
commenter's comment and is hesitant to rely on it to undermine the
product of the negotiation.
\90\ 448 U.S. 607 (1980).
\91\ 445 U.S. 1 (1980).
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OSHA disagrees with the commenter's contention that OSHA lacks the
authority to promulgate Sec. 1926.1418. Under sec. 3(8) of the OSH Act
and applicable case law,\92\ the Agency has broad authority to
promulgate standards that are reasonably necessary or appropriate to
provide safe or healthful places of employment. In Whirlpool Corp., the
U.S. Supreme Court stated that the Act ``does not wait for an employee
to die or become injured.'' \93\ Section 1926.1418 is an essential
mechanism for preventing fatalities and injuries. It enables the person
who has the expertise to recognize a safety concern and is best
positioned to act quickly to do so where such a concern arises.\94\
---------------------------------------------------------------------------
\92\ E.g., Indus. Union Dep't, AFL-CIO, 448 U.S. at 611-12.
\93\ 445 U.S. at 12.
\94\ As stated above, current consensus standards manifest the
industry's recognition of the necessity for a crane operator to have
such authority. In concert with Sec. 1926.1400(f), Sec. 1926.1418
requires the employer to authorize its crane operator to halt
operations upon a safety concern until a qualified person determines
that safety has been assured.
---------------------------------------------------------------------------
OSHA also disagrees with the commenter's contention that Sec.
1926.1418 impermissibly grants stop-work authority, as well as a
different commenter who asserted that the wording of the provision is
too vague and could lead to an abuse of the operator's authority. Both
commenters suggested that OSHA limit the operator's authority to
specific reasons involving a potential violation of a requirement in
subpart CC. (ID-0218.1; 0232.1.)
The provision does not authorize an operator to stop operations for
reasons unrelated to a good faith belief that there may be a safety
problem. In this respect the provision is similar to other provisions
in the standard (and elsewhere in 29 CFR part 1926) in which an
employer is required to have a person in a specialized role perform
specific tasks involving the application of expertise (e.g., competent
and qualified persons performing inspections under Sec. 1926.1412). In
each case compliance with the standard is predicated on the good faith
application of that expertise.\95\
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\95\ Two organizations that nominated C-DAC members reminded the
Agency in their comments that OSHA had committed during the C-DAC
negotiations to include a discussion in the preamble regarding this
principle of good faith. (ID-0205.1; -213.1.) The Agency believes
that the foregoing paragraph satisfies that agreement.
---------------------------------------------------------------------------
C-DAC thoroughly discussed the wording of this provision, mindful
of the need for both clarity and sufficient flexibility to enable the
operator to address myriad circumstances. The Committee's wording
strikes an appropriate balance. The word ``concern'' refers to a good
faith belief that safety may be in jeopardy. The word ``assured'' means
that the qualified person has assessed whatever triggered the crane
operator's belief that there was a concern as to safety and either: (1)
Determines that there is not, in fact, a safety hazard, or (2) after
corrective action is taken, determines that there is no longer a safety
hazard.
OSHA disagrees with the commenter's suggestion to link the
authority to a violation of subpart CC. While C-DAC and the Agency have
made every effort to address the hazards associated with crane and
derrick operation, there may be circumstances that present hazards that
have not been anticipated here.
In addition, a particular situation may not be immediately
recognized as falling within one of subpart CC's provisions. An
operator's uncertainty in that regard could lead him/her to hesitate to
exercise the authority even where it needs to be applied. Also, the
determination by a qualified person to proceed with operations needs to
be based on whether safety is assured, not on the resolution of a
debate about whether the operator's concern fits within a provision of
this standard.
Another commenter expressed the following concerns: ``qualified
person'' should be better defined; the qualified person would feel
undue pressure from the controlling entity or crane employer to find
that safety had been assured, and that the qualified person's scope of
responsibility once operations resume is unclear. (ID-0218.1.)
As explained in the preamble to the proposed rule, the definition
of ``qualified person'' in Sec. 1926.1401 corresponds to the
definition of ``qualified'' in Sec. 1926.32(m) and reflects the fact
that the duties assigned to ``qualified persons'' here are similar to
those assigned under other construction standards. The Committee
intentionally used the same definition to make it clear that employers
could rely on their current understanding of ``qualified person.'' OSHA
sees no reason to deviate from that definition where the commenter did
not explain how it viewed the definition as vague or provide
alternative language.
[[Page 47996]]
With respect to the issue of undue pressure on the qualified
person, C-DAC shared the commenter's concern; the Committee identified
pressure placed by some employers on operators to proceed with unsafe
lifts as a significant problem in the industry. This led C-DAC, for
example, to include the specific prohibition in Sec. 1926.1417(o)(2)
against requiring an operator to operate the equipment in excess of its
rated capacity (see the discussion of Sec. 1926.1417(o)(2) in 73 FR
59792-59793, Oct. 9, 2008). The commenter did not suggest, and OSHA is
not aware of, any additional measures that could be included in the
standard to help prevent the application of that type of pressure.
As to the commenter's final point, after a crane operator stops and
refuses to proceed with operations due to a concern as to safety, the
qualified person would then assess the situation and determine whether
or when safety has been assured. At that point, the qualified person's
responsibilities under Sec. 1926.1418 would be completed unless and
until the crane operator identifies another concern as to safety. The
Agency, therefore, is promulgating this provision as proposed.
Sections 1926.1419 Through 1926.1422 Signals
Sections 1926.1419 through 1926.1422 address the circumstances
under which a signal person must be provided, the type of signals to be
used, criteria for how signals are transmitted, and other criteria
associated with the use of signals.
OSHA has decided to replace the term ``lift supervisor'' with the
term ``lift director'' in Sec. Sec. 1926.1419(c)(2), 1926.1421(a), and
1926.1421(c). This decision was made to be consistent with the similar
change from ``A/D supervisor'' to ``A/D director'' in Sec.
1926.1404(a). For an explanation of the change, see the discussion of
Sec. 1926.1404(a).
Section 1926.1419 Signals--General Requirements
This section sets requirements regarding signals when using
equipment covered by this standard. C-DAC determined that addressing
these issues is one of the means by which the number of injuries and
fatalities caused by ``struck-by'' incidents, in which the equipment or
load strikes an employee, can be reduced.
Paragraph (a)
Paragraphs (a)(1) through (a)(3) of this section address the
circumstances that require the use of a signal person: (1) When the
point of operation, meaning the load travel path or the area near or at
load placement, is not in full view of the operator (Sec.
1926.1419(a)(1)); (2) when the equipment is traveling and the
operator's view in the direction of travel is obstructed (Sec.
1926.1419(a)(2)); and (3) when, due to site specific safety concerns,
either the operator or the person handling the load determines it is
necessary (Sec. 1926.1419(a)(3)). The first two of these circumstances
involve an obvious hazard--limited operator visibility. With respect to
the third circumstance, C-DAC determined that other situations arise
that, from a safety standpoint, necessitate the use of a signal person
(see examples in the preamble to the proposed rule at 73 FR 59796, Oct.
9, 2008).
One commenter, representing the interests of the material delivery
industry, suggested that Sec. 1926.1419(a) be changed to specify that,
if a signal person is needed at the site due to the obstructed view of
the operator when delivering building materials, then the construction
site customer (not the material delivery employer) would be responsible
for providing the signal person. (ID-0184.1.) OSHA concludes that the
question of whether the material delivery employer or the construction
site customer should bear the cost of providing the signal person when
required is an economic issue that is most appropriately left to the
parties to resolve.
During the public hearing, a labor representative stated that his
organization believes that a signal person is always necessary when
working with cranes. (ID-0343.) Two commenters representing the
materials delivery industry disagreed (ID-0184.1; -0218.1.)
OSHA has decided to defer to the expertise of the Committee, which
found that a signal person should only be required in the three
circumstances listed in Sec. 1926.1419(a). Moreover, OSHA notes the
requirement in Sec. 1926.1419(a)(3), which provides that a signal
person must be provided if the crane operator or person handling the
load determines a signal person is necessary due to site specific
safety concerns. This provision, in particular, ensures that a signal
person will be required when necessary.
One commenter asked for clarification on the meaning of ``full view
of the operator'' in Sec. 1926.1419(a)(1). (ID-292.1.) In particular,
the commenter asked whether mirror or camera systems would meet this
requirement. Another commenter suggested adding language allowing the
use of boom mounted video cameras for blind lifts. (ID-0120.0.)
A live video system that provides a full view to the crane
operator--i.e., provides a sufficiently broad, clear and detailed view
to enable the operator to see all that is needed to operate the
equipment safely--would meet the ``full view of the operator''
requirement. Mirrors, on the other hand, typically distort images or
distances and thus would not normally be sufficient to provide a ``full
view.''
The sufficiency of any system will depend on the particular needs
posed by each situation. For this reason, OSHA has decided to rely on
C-DAC's clear and succinct phrase, ``full view of the operator,''
rather than to attempt to further define that concept or to list
acceptable devices in the regulatory text.
Paragraph (b) Types of Signals
As explained in the proposed rule preamble, under paragraph (b) of
this section, signals to crane operators would have to be by hand,
voice, audible, or ``new'' signals (see 73 FR 59796-59797, Oct. 9,
2008). As used in this standard, these terms refer to the type of
signal, not the means by which the signal is transmitted. For example,
signaling by voice refers to oral communication, not whether the oral
communication is done with or without amplification or with or without
electronic transmission. The manner of transmission of the signal is
addressed separately. No comments were received on this paragraph; it
is promulgated as proposed.
The criteria for the use of these signal types are set out in
Sec. Sec. 1926.1419(c)-(m) (additional voice signal requirements are
in Sec. 1926.1421, Signals--voice signals--additional requirements).
The Committee's intent was to reduce the potential for
miscommunication, which can lead to injuries and fatalities,
particularly from ``struck-by'' and ``crushed-by'' incidents. In
setting parameters for the use of the various types of existing signal
methods, and for signal methods that may be developed in the future,
the Committee sought to promote a degree of standardization while still
allowing appropriate flexibility. In addition, the provisions are
designed to ensure that the selection of signal type and means of
sending the signals are appropriate under the circumstances and
reliable.
Paragraph (c) Hand Signals
Paragraph (c) of this section addresses the use of hand signals.
The industry has long recognized the need for consistent, universal
hand signals to
[[Page 47997]]
minimize the potential for miscommunication between signal persons and
operators. ANSI B30.5-1968, ``Crawler, Locomotive and Truck Cranes,''
contains illustrations of hand signals that are the same as the current
2004 edition of ASME B30.5 and that are consistent with hand signals
for other types of cranes in ASME B30 standards. The same hand signals
have been expressed in similar charts published by a variety of other
groups. (See, e.g., Construction Safety Association of Ontario, MIOSHA,
MSHA.)
Because of the industry's long familiarity with these standard hand
signals, C-DAC determined that, when using hand signals, the
standardized version of the signals should continue to be required.
These signals, which are located in Appendix A, are referred to as the
``Standard Method,'' and this term is defined in Sec. 1926.1401 as
``the protocol in Appendix A for hand signals.'' However, the Committee
recognized that there are instances when use of the Standard Method is
either infeasible or where there is no Standard Method signal
applicable to the work being done.
In such instances, under this paragraph, non-standard signals may
be used. To avoid confusion when non-standard signals are used,
proposed Sec. 1926.1419(c)(2) requires that the signal person, crane
operator, and lift director (where there is one) meet prior to the
operation to agree upon the signals that will be used.
At the public hearing, one witness commented that the use of non-
standard hand signals should not be allowed because it would
unnecessarily confuse contractors and utility workers, and because
standard signals are already used in the industry. (ID-345.17.) OSHA
defers to the expertise of the Committee, which found that a non-
standard signal may be needed on occasion (see 73 FR 59797, Oct. 9,
2008, in which the Agency described examples of such situations).
Additionally, it should be noted that Sec. 1926.1419(c) requires the
use of Standard Method hand signals and permits an exception only where
the Standard Method signals are infeasible or where there is no
Standard Method signal for the particular attachment.
One commenter pointed out that there are currently no hand signals
specific to articulating cranes and asked which signals OSHA intended
to be used with articulating cranes. (ID-0206.1.) The record contains
no information on the extent to which hand signals for articulating
cranes may differ from those used for other cranes. If the use of
Standard Method hand signals is either infeasible for articulating
cranes, or if the use or operation of an attachment is not covered by
the Standard Method, then the exception in Sec. 1926.1419(c)(1) and
the requirements for non-standard hand signals in Sec. 1926.1419(c)(2)
would apply.
OSHA is only making two changes, neither of which is substantive,
from Sec. 1926.1419(c) as proposed. The first is a grammatical
correction, and the second merely removes the superfluous direction
that ``[t]he following requirements apply to the use of non-standard
hand signals,'' which is already clear from the text of Sec.
1926.1419(c)(2).
Paragraph (d) New Signals
Paragraph (d) of this section allows signals other than hand,
voice, or audible signals to be used if certain criteria are met. As
explained in the discussion of Sec. 1926.1419(b) in the preamble to
the proposed rule, C-DAC included Sec. 1926.1419(d) to allow for the
development of new signals in the future (see 73 FR 59796-59797, Oct.
9, 2008). To ensure that any new signals developed by a particular
employer are as effective as hand, voice, or audible signals,
Sec. Sec. 1926.1419(d)(1) and (d)(2) require the employer to
demonstrate that the new signals are as effective as existing signals
for communicating. Alternatively, an employer may use signals that
comply with a national consensus standard.\96\ OSHA decided to change
the language of paragraph (d)(2) to clarify that an employer's signals
must comply with the national consensus standard signals. C-DAC
determined it was appropriate to allow reliance on signals in a
national consensus standard because their inclusion in such a standard
shows a high degree of standardization and widespread acceptance by
persons who are affected by the signals, thereby ensuring that the
signals can be used safely to control equipment operations and
preventing the ``on the fly'' development of signals cited as dangerous
by the commenter. (ID-0110.1.)
---------------------------------------------------------------------------
\96\ The C-DAC draft refers to an ``industry consensus
standard.'' OSHA has changed this to ``national consensus standard''
to conform to the terminology used in the OSH Act. See definition in
section 3(9) of the Act.
---------------------------------------------------------------------------
Paragraph (e) Suitability
Under paragraph (e) of this section, the type of signal (hand,
voice, audible, or new) and the transmission method used must be
suitable for the site conditions. For example, hand signals would not
be suitable if site conditions do not allow for the signal person to be
within the operator's line of sight. Radio signals would not be
suitable if electronic interference on the site prohibits the signals
from being readily understood.
One commenter requested that the determination of which type and
means of signaling is appropriate for the site conditions be made by
the crane operator or other qualified person. (ID-0172.1.)
The Agency concludes that this is a straight-forward determination
that does not require the specialized expertise of a qualified person.
Also, the crane operator will typically be involved in this
determination, since there are several requirements relating to
effective communication that, as a practical matter, will typically
involve input from the operator (see, for example, Sec. Sec.
1926.1419(f), 1926.1420(a), and 1926.1421(c)).
Paragraph (f)
Paragraph (f) of this section requires the ability to transmit
signals between the operator and signal person to be maintained. If
that ability is interrupted, the operator is required to safely stop
operations until signal transmission is reestablished and a proper
signal is given and understood. No comments were received on this
provision; it is included in the final rule without change.
Paragraph (g)
As explained in the preamble to the proposed rule, paragraph (g) of
this section requires the operator to stop operations if the operator
becomes aware of a safety problem and needs to communicate with the
signal person (see 73 FR 59797, Oct. 9, 2008). Operations may only be
resumed after the operator and signal person agree that the problem has
been resolved.
No comments were received on this provision; it is included in the
final rule without change.
Paragraphs (h) and (j)
Paragraph (h) of this section requires that only one person at a
time signal the operator. As explained in the preamble to the proposed
rule, C-DAC determined this provision was needed to prevent confusion
with respect to which signals the operator is supposed to follow (see
73 FR 59797, Oct. 9, 2008). An exception is provided in Sec.
1926.1419(j) to address situations when somebody becomes aware of a
safety problem and gives an emergency stop signal. Under Sec.
1926.1417(y), the operator is required to obey such a signal. No
comments were received on either of these provisions; they are
[[Page 47998]]
included in the final rule without substantive change. OSHA has
modified paragraph (h) to clarify that it is a requirement.
Paragraph (i) [Reserved.]
Paragraph (k)
As explained in the preamble to the proposed rule, paragraph (k) of
this section requires that all directions given to the operator by the
signal person be given from the operator's direction perspective,
meaning that the signal person must provide the signals as if he or she
was sitting in the operator's seat and facing the same direction as the
operator (see 73 FR 59797, Oct. 9, 2008). In the Committee's
experience, the operator will tend to react to a directional signal,
such as ``forward,'' by acting on the signal from the operator's
perspective. This provision ensures that the signal that is given will
be consistent with that natural tendency. No comments were received on
this provision; it is included in the final rule without change.
Paragraph (l) [Reserved.]
Paragraph (m) Communication With Multiple Cranes/Derricks
Paragraph (m) of this section addresses a situation where one or
more signal person(s) is in communication with more than one crane or
derrick (for example, during multiple crane lifts). It requires each
signal person to use an effective means of identifying which crane or
derrick the signal is for. Sections 1926.1419(m)(i) and (ii) set out
alternate means of complying with this requirement. Under Sec.
1926.1419(m)(i), for each signal the signal person must, prior to
giving the function/direction, identify the crane/derrick for which the
signal is intended. Alternatively, under Sec. 1926.1419(m)(ii), the
employer could implement a method of identifying the crane/derrick for
which the signal is intended that is as effective as the system in
Sec. 1926.1419(m)(i). For example, under Sec. 1926.1419(m)(ii), the
signal person could simultaneously identify the crane and provide the
signal. Because of the potential for confusion, it is essential that an
alternative system under Sec. 1926.1419(m)(ii) be equally effective as
Sec. 1926.1419(m)(i) in clearly conveying, on a consistent basis, the
crane/derrick to which each signal is directed. No comments were
received on this provision; it is included in the final rule without
substantive change. The wording of the paragraph has been modified with
several minor grammatical changes.
Section 1926.1420 Signals--Radio, Telephone, or Other Electronic
Transmission of Signals
C-DAC concluded that certain criteria are needed to ensure the
reliability and clarity of electronically transmitted signals; these
criteria are listed in Sec. Sec. 1926.1420(a) through (c). Paragraph
(a) of this section requires the testing of the transmission devices
prior to the start of operations to make certain that the signals are
clear and that the devices are reliable. This helps ensure that the
operator receives, and can understand, the signals that are given, and
will prevent accidents caused by miscommunication.
One commenter, remarking that a second or two of delay may still
pose a significant safety hazard, suggested that Sec. 1926.1420(b) be
amended to read, ``Signal transmission must be through a dedicated
channel without noticeable delay * * *.'' (ID-0172.1.)
OSHA agrees that a noticeable delay in transmission of an
electronic signal could pose a significant hazard and has decided to
address this concern by adding the requirement that signal transmission
be ``effective.'' To be effective, a transmitted signal must produce or
be capable of producing the intended result. In other words, a signal
must be transmitted and understood by the crane operator in such a way
and within such a time as would allow the operator to respond to the
signal and operate the crane in a safe manner.
Paragraph (b) of this section requires that signals be transmitted
through a dedicated channel. As defined in Sec. 1926.1401, a
``dedicated channel'' is ``a line of communication assigned by the
employer who controls the communication system to only one signal
person and crane/derrick or to a coordinated group of cranes/derricks/
signal person(s).'' Use of a dedicated channel ensures that the
operator and signal person are not interrupted by users performing
other tasks or confused or distracted by instructions not intended for
them.
An exception to Sec. 1926.1419(b) allows more than one signal
person and more than one crane/derrick operator to share a dedicated
channel in multiple crane/derrick situations for coordinating
operations. The Committee determined, and OSHA agrees, that this
exception is needed because, in those situations, it may be
advantageous to share a single dedicated channel. For example, in some
situations several cranes may be operating in an area in which their
booms, loads or load lines could come in contact with each other. In
such cases it is crucial that the movements of each crane be properly
coordinated. By sharing a single channel, each operator can hear what
each crane is being asked to do, which can facilitate that
coordination.
Several commenters representing the railroad industry raised
concerns about the dedicated channel requirement as it relates to the
use of cranes on or adjacent to railroad tracks. (ID-0170.1; -0176.1; -
0291.1.) These commenters pointed out that the actions of crane
operators often have to be coordinated with other moving equipment
(e.g. trains) and that the use of a dedicated channel in these
circumstances would actually be more dangerous.
The commenters' points in this regard are persuasive; OSHA has
accordingly added Sec. 1926.1420(b)(2). This allows an exception to
the use of a dedicated channel when a crane is being operated on or
near railroad tracks and the crane operator must coordinate with the
movement of other equipment on or near the railroad tracks.
Paragraph (c) of this section requires that the operator's
reception be by a hands-free system. In other words, the operator must
not have to depress a button, manipulate a switch, or take any action
for the incoming signal to be received. C-DAC determined that this
provision is needed because the operator must have both hands free to
manipulate the equipment's controls. No comments were received on this
provision; it is included in the final rule without change.
Section 1926.1421 Signals--Voice Signals--Additional Requirements
C-DAC considered whether the rule should include a standardized set
of voice signals. Unlike hand signals, which have become standardized
to a large extent within the industry, in the Committee members'
experience there is significant variation in the phrases used to convey
the same instructions. Consequently, C-DAC was concerned that words or
phrases that it might have chosen to be ``standard'' voice signals
could be unfamiliar to many employees in the industry or contrary to
common usage in some parts of the country. In light of this, the
Committee determined that it would be better to use a different
approach to address the problem of miscommunication when using voice
signals. This approach, which establishes criteria for whatever voice
signals are used, is set out in Sec. Sec. 1926.1421(a)-(c).
Under paragraph (a) of this section, prior to beginning operations,
the personnel involved with signals--the crane operator, signal person
and lift director (if there is one)--are required to
[[Page 47999]]
meet and agree on the voice signals that will be used. Because of the
lack of standardization and the variety of languages that are in use in
the construction industry, the Committee concluded that it is essential
that the persons who give and/or receive voice signals agree in advance
on the signals that will be used to avoid miscommunication. OSHA
agrees. Once the parties have met and agreed on the voice signals,
another meeting is not required to discuss them unless another worker
is added or substituted, there is some confusion about the signals, or
a signal needs to be changed.
Section 1926.1421(b) requires that each voice signal contain the
following three elements, given in the following order: function (such
as hoist, boom, etc.), direction; distance and/or speed; function, stop
command. For example: hoist up; 10 feet; hoist stop. As discussed
above, the Committee considered it impractical to attempt to
standardize the voice signals themselves (that is, to require the use
of particular words to represent particular functions, directions or
other instructions). However, the Committee concluded that the chance
of miscommunication could nonetheless be reduced if certain parameters
were established for the type of information and order of information
that would be given. OSHA agrees.
Section 1926.1421(c) requires the crane operator, signal person,
and lift director (if there is one) to be able to effectively
communicate in the language used. Voice signals will not serve their
intended purpose if they cannot be understood, or can be
misinterpreted. The inability of these workers to understand each other
could lead to accidents that occur when, for example, the crane
operator moves a load in a different direction than the signal person
intends.
One commenter suggested that uniform verbal signals were necessary
to limit the likelihood of miscommunications resulting from language
barriers. (ID-0379.1.) Three commenters suggested that OSHA establish
uniform verbal signals enhanced by diagrams and pictures. (ID-0110.1; -
0115.1; -0178.1.) Two of these commenters suggested that OSHA require
these verbal signal charts to be conspicuously posted in the vicinity
of the hoisting operations. (ID-0110.1; -0115.1.)
As discussed above, C-DAC considered whether the rule should
include a standardized set of voice signals and decided that it would
not be practical to do so. It did, however, address the potential for
miscommunication by developing the requirements in Sec. 1926.1421(a)
(requiring a meeting between the operator, signal person and lift
director to determine which verbal signals will be used). Having
received no evidence to the contrary, OSHA has decided to defer to the
expertise of the Committee, and is promulgating this requirement
without substantive change. The word ``shall'' is replaced with
``must'' in paragraphs (b) and (c) to remove any doubt that the
sentences are imperative commands, rather than descriptive.
Section 1926.1422 Signals--Hand Signal Chart
Section 1926.1422 requires that hand signal charts be posted on the
equipment or readily available at the site. OSHA is requiring the
charts to be posted to serve as a reference for operators and signal
persons of the mandatory hand signals and thereby help avoid
miscommunication.
Three commenters suggested that Sec. 1926.1422 be rewritten to
require that the hand signal charts be ``conspicuously posted in the
vicinity of'' the hoisting operations, rather than merely making them
``readily available at the site'' as proposed. (ID-0110.1; -0115.1; -
0178.1.)
Upon further reflection, the Agency acknowledges that the original
language (that the hand signal chart could be ``readily available at
the site'') did not afford the same amount of protection afforded by
``conspicuously posted in the vicinity of the hoisting operations.''
For example, a hand signal chart stored in a shop trailer on the other
side of the site or obscured from sight by other objects might be
``readily available at the site,'' but it would do little to ensure
that the chart would be accessed by employees where it is needed. It is
the Agency's intent that employees be able to access the chart quickly.
OSHA therefore decided to modify the language of Sec. 1926.1422 to
require that signal charts be conspicuously posted in the vicinity of
hoisting operations, or on the equipment.
Section 1926.1423 Fall Protection
This section contains provisions designed to protect workers on
equipment covered by this subpart from fall hazards. (See Sec.
1926.1431, Hoisting Personnel, for fall protection provisions that
apply when equipment is used to hoist personnel).
Falls have traditionally been the leading cause of deaths among
construction workers. BLS data for 2004 and 2005, the latest years for
which complete figures are available, shows 445 fatalities from falls
in 2004 (ID-0023) and 394 in 2005 (ID-0024). In 2004, 20 fatalities
resulted from falls from nonmoving vehicles and in 2005, such falls
caused 18 deaths. A recent study of crane-related fatalities in the
U.S. construction industry found that 2% resulted from falls. J.E.
Beavers, J.R. Moore, R. Rinehart, and W.R. Schriver, ``Crane-Related
Fatalities in the Construction Industry,'' 132 Journal of Construction
Engineering and Management 901 (Sept. 2006). (ID-0012.) Falls from
cranes, particularly when the operator is entering or leaving the
crane, also cause numerous non-fatal injuries to construction workers.
(OSHA-S030-2006-0663-0422.)
As discussed in the preamble to the proposed rule, the Committee
determined that safety would be enhanced by addressing the problem of
fall hazards associated with cranes and derricks comprehensively and
that putting all such requirements in subpart CC would make it easier
for employers to readily determine the applicable fall protection
requirements (see 73 FR 59799, Oct. 9, 2008). Accordingly, under the
final rule, subpart M does not apply to equipment covered by subpart CC
except where Sec. 1926.1423 incorporates requirements of subpart M by
reference.
In this regard, the Agency has amended subpart M at Sec.
1926.500(a)(2)(ii) to make clear that subpart CC specifies the
circumstances in which fall protection must be provided to workers on
equipment covered by subpart CC. The Agency has also amended Sec.
1926.500(a)(3) to state that the criteria for fall protection systems
required under subpart CC are as set forth in Sec. 1926.1423 of
subpart CC. In addition, Sec. 1926.500(a)(4) has been amended to
specify that the training requirements in Sec. 1926.503 do not apply
to the use of equipment covered by subpart CC. These amendments to
Sec. 1926.500 are discussed in the explanation of amendments to
subpart M.
Definition of ``Fall Protection Equipment''
``Fall protection equipment'' is defined in Sec. 1926.1401, and is
limited to guardrail systems, safety net systems, personal fall arrest
systems, positioning device systems, and fall restraint systems. One
commenter stated that this definition should be changed to that found
in ANSI/ASSE Z359.0--2007, Definitions and Nomenclature used for Fall
Protection and Fall Arrest, which defines ``fall protection'' more
broadly to include any equipment, device, or system that either
prevents a fall or mitigates the effect of a fall. (ID-0178.1.)
However, as OSHA explained in the proposed rule, the proposed
definition
[[Page 48000]]
was chosen to use the same terminology found in other OSHA standards to
ensure that employers would be familiar with the terminology (see 73 FR
59799, Oct. 9, 2008). Moreover, OSHA notes that sec. 1.3.1 of ANSI/ASSE
Z359.0--2007 provides that the scope of that standard does not include
the construction industry. Accordingly, OSHA is retaining the proposed
definition in the final rule.
Definition of ``Positioning Device System''
A trade association objected to the lack of definitions for ``fall
arrest'' or ``positioning systems.'' (ID-0178.1.) OSHA notes that
proposed Sec. 1926.1401 did contain a definition for ``personal fall
arrest system,'' and that definition is included in the final rule.
OSHA agrees that a definition of ``positioning device system'' is
needed and is adding a definition to Sec. 1926.1401 in the final rule
that is the same as the definition found in subpart M.
Paragraph (a) Application
Section 1926.1423(a) specifies which provisions in this section
apply to all equipment, including tower cranes (Sec. Sec.
1926.1423(c)(1), (c)(2), (d), (g), (j) and (k)); which provisions apply
to all equipment except tower cranes (Sec. Sec. 1926.1423(b), (c) (3),
(e) and (f)); and which provisions apply only to tower cranes
(Sec. Sec. 1926.1423(c)(4) and (h)).
Paragraph (b) Boom Walkways
For the reasons explained in the preamble to the proposed rule,
Sec. 1926.1423(b) addresses the hazard of falls from lattice booms by
establishing when walkways must be incorporated into lattice booms, and
the criteria for such walkways (see 73 FR 59799-59800, Oct. 9, 2008).
No comments were received on this paragraph; it is included in the
final rule without change.
Paragraph (c) Steps, Handholds, Ladders, Grabrails, Guardrails and
Railings
Section 1926.1423(c) in the final rule specifies criteria for the
use and maintenance of steps, handholds, ladders, grabrails, guardrails
and railings. The Agency notes that proposed paragraph (c)
inadvertently omitted ``ladders'' from the list of devices in the
paragraph's heading. Accordingly, OSHA has revised final paragraph (c)
to include the word ladders.
Section 1926.502(b) generally provides criteria for guardrail
systems, with some exceptions (see discussion of amendments to Sec.
1926.500). C-DAC concluded, however, that specific criteria for steps,
handholds, ladders, grabrails, guardrails and railings were necessary
to address the design characteristics of equipment covered by subpart
CC and the particular fall hazards associated with the use of such
equipment.
OSHA agrees, and is therefore adding Sec. 1926.1423(c)(1), which
states that Sec. 1926.502(b) (guardrail systems) must not apply to
equipment covered by subpart CC, to the final rule. It makes clear that
the guardrail criteria requirements in Sec. 1926.502(b) for those
items do not apply to equipment covered by subpart CC. Instead,
Sec. Sec. 1926.1423(c)(2), (3), and (4), discussed below, provide the
applicable criteria for such equipment. Because of the addition of
paragraph (c)(1), which was not in the proposed rule, paragraphs
(c)(2), (3), and (4) have been renumbered from the proposal, where they
were paragraphs (c)(1), (2), and (3).
Paragraph (c)(2) of this section requires that the employer
maintain in good condition originally-equipped steps, handholds,
ladders and guardrails/railings/grabrails.\97\ The failure to properly
maintain such devices could pose dangers to the workers who use them.
For example, a grabrail would not be maintained in good condition if it
has become weakened from rust. A weakened guardrail could fail when an
employee uses it, which could cause the employee to fall. Likewise, a
railing would not be maintained in good condition if all or part of the
railing is missing. A manufacturer that integrated a railing into its
boom design may have relied on the presence of the railing and provided
a walking surface that would otherwise be too narrow to be safe.
---------------------------------------------------------------------------
\97\ OSHA has changed the location of the words ``in good
condition'' in Sec. 1926.1423(b) to make it clear that it applies
to maintenance of all of the listed items.
---------------------------------------------------------------------------
Paragraphs (c)(3) and (c)(4) of this section require that equipment
manufactured more than one year after the effective date of this
standard be equipped to provide safe access and egress on equipment
covered by this subpart by the provision of devices such as steps,
handholds, ladders, and guardrails/railings/grabrails. Tower cranes
must be equipped to provide safe access and egress between the ground
and the cab, machinery platforms, and tower (mast) (see below
discussion of paragraph (c)(4)). All other equipment covered by this
subpart must be equipped to provide safe access and egress between the
ground and the operator work station(s), including the forward and rear
operator positions. As discussed below, Sec. Sec. 1926.1423(c)(3)(i)
and 1926.1423(c)(4)(i) require the steps, handholds, ladders and
guardrails/railings/grabrails used to comply with this section to meet
updated design criteria.
Prior to this final rule, former Sec. 1926.550(a)(13)(i) in
subpart N required that guardrails, handholds, and steps be provided on
cranes for easy access to the car and cab and specified that these
devices conform to ANSI B30.5. The 1968 version of ANSI B30.5, which
was in effect at the time subpart N was issued, specifies that the
construction of these devices must conform to the 1946 U.S. Safety
Appliance Standard. C-DAC recognized that many pieces of equipment now
in use would have been manufactured with handholds and steps but was
concerned that the handholds and steps may have been designed to meet
outdated criteria.
The Committee determined, and OSHA agrees, that it would be unduly
burdensome to require all equipment to be retrofitted with new steps,
handholds, and railings simply because the existing design may vary
from what is required under the final rule. Accordingly, Sec.
1926.1423(c)(3) only applies to equipment manufactured more than one
year after the effective date of this standard. This gives equipment
manufacturers adequate time to incorporate the requirements of Sec.
1926.1423(c)(3)(i) into their new products.\98\
---------------------------------------------------------------------------
\98\ OSHA had added the word ``devices'' in the last sentence of
paragraph (c)(3) for grammatical clarity.
---------------------------------------------------------------------------
Paragraph (c)(3)(i) requires that steps, handholds, ladders and
guardrails/railings/grabrails meet the criteria of SAE J185 (May 2003)
or ISO 11660-2:1994(E). As explained above in the discussion of
amendments to subpart X, OSHA amended subpart X to clarify that subpart
X does not apply to integral components of equipment covered by subpart
CC. The specifications in SAE J185 (May 2003) are referenced in other
industry consensus standards, such as ASME B30.5-2004, ``Mobile and
Locomotive Cranes'' and ASME B30.3-2004, ``Construction Tower Cranes,''
and crane manufacturers are familiar with those requirements. Section
1926.1423(c)(3)(i) alternatively allows compliance with ISO 11660-2
because those provisions are sufficiently protective and employers also
use equipment built by foreign manufacturers who have been following
that standard.
[[Page 48001]]
OSHA notes that proposed Sec. 1926.1423(c)(2)(i) \99\
inadvertently omitted handholds from the listed devices that must meet
the criteria of SAE J185 (May 2003) or ISO 11660-2:1994(E).
Accordingly, OSHA has added handholds to the final rule in Sec.
1926.1423(c)(3)(i). Additionally, OSHA has replaced the word
``requirements'' in proposed Sec. 1926.1423(c)(2)(i) with ``criteria''
in the final Sec. 1926.1423(c)(3)(i). The Agency determines this
change clarifies that the listed devices must comply with the design
criteria contained in the referenced standards and that, for the
purposes of Sec. 1926.1423(c)(3)(i), other provisions in the
referenced standards do not apply. To illustrate, both SAE J185 (May
2003) and ISO 11660-2:1994(E) contain provisions relating to the scope
of those standards. However, Sec. 1926.1400 sets forth the scope of
equipment covered by subpart CC (see discussion above of Sec.
1926.1400, Scope). Consequently, Sec. 1926.1423(c)(3)(i) requires that
steps, handholds, ladders, and guardrails/railings/grabrails on
equipment covered by subpart CC (other than tower cranes) meet the
criteria for such devices in SAE J185 (May 2003) or ISO 11660-
2:1994(E), irrespective of the scope provisions in those consensus
standards.
---------------------------------------------------------------------------
\99\ Proposed Sec. 1926.1423(c)(2)(i) corresponds with Sec.
1926.1423(c)(3)(i) in the final rule.
---------------------------------------------------------------------------
Paragraph (c)(3)(ii) of this section requires that walking/stepping
surfaces, except for crawler treads, have slip-resistant features/
properties (such as diamond plate metal, strategically placed grip
tape, expanded metal, or slip-resistant paint). Former Sec.
1926.550(a)(13)(iii) of subpart N required platforms and walkways to
have anti-skid surfaces. C-DAC recommended that OSHA retain this
requirement as a complement to the use of guardrails, handholds,
grabrails, ladders and other engineered safety features that are
required by new Sec. 1926.1423. OSHA concludes that compliance with
this provision will minimize the number of slips and falls for
employees who must travel point to point to access the operator
workstations on equipment covered by this section.
Paragraph (c)(4) of this section applies to fall protection on
tower cranes. For the same reasons explained above with respect to
Sec. 1926.1423(c)(3), Sec. 1926.1423(c)(4) likewise only applies to
tower cranes manufactured more than one year after the effective date
of this standard. Such equipment must be equipped so as to provide safe
access and egress between the ground and the cab, machinery platforms,
and tower (mast), by the provision of devices such as steps, handholds,
ladders, and guardrails/railings/grabrails. In the preamble to the
proposed rule, OSHA stated the Agency's intent to include a requirement
to provide safe access and egress on tower cranes, similar to the
requirement in final paragraph (c)(3) to provide safe access and egress
on other equipment covered by subpart CC, and requested public comment
on the issue (73 FR 59800, Oct. 9, 2008).
Three commenters responded, all stating that the final rule should
include the requirement to provide safe access and egress on tower
cranes. (ID-0182.1; -0205.1; -0213.1.) Accordingly, OSHA has added
paragraph (c)(4) to the final rule.
Paragraph (c)(4)(i) of this section requires steps, handholds,
ladders, and guardrails/railings/grabrails on these tower cranes to
meet the criteria of ISO 11660-1:2008(E) and ISO 11660-3:2008(E), or
SAE J185 (May 2003), except where infeasible. For the same reasoning
discussed above with respect to Sec. 1926.1423(c)(3)(i), paragraph
(c)(4)(i) allows employers to use equipment designed to the
specifications of SAE J185 (May 2003) or, alternatively, ISO 11660-
1:2008(E) and ISO 11660-3:2008(E).
The Agency notes that ISO 11660-1:2008(E) provides criteria
applicable to cranes in general while ISO 11660-3:2008(E) provides
criteria particular to tower cranes. The Agency reads the particular
criteria in ISO 11660-3:2008(E) as supplementing the general criteria
in ISO 11660-1:2008(E).\100\ Therefore, paragraph (c)(4)(i) would only
be satisfied under this alternative if the steps, handholds, ladders
and guardrails/railings/grabrails on the tower crane meet the criteria
in both ISO 11660-1:2008(E) and ISO 11660-3:2008(E).
---------------------------------------------------------------------------
\100\ The Agency notes that the approach for the 2008 editions
of ISO 11660-1 and ISO 11660-3 appears to differ from that of the
ISO 11660-2:1994(E). The Agency interprets ISO 11660-2:1994(E) as
addressing steps, handholds, ladders and guardrails/railings/
grabrails independent of ISO 11660-1:2008(E).
---------------------------------------------------------------------------
Paragraph (c)(4)(ii) of this section requires walking/stepping
surfaces on tower cranes to have slip-resistant features/properties,
such as diamond plate metal, strategically placed grip tape, expanded
metal, or slip-resistant paint. Similar to paragraph (c)(3)(ii) (see
above discussion of paragraph (c)(3)(ii)), paragraph (c)(4)(ii) carries
forward the anti-skid protections from former Sec.
1926.550(a)(13)(iii).
Paragraph (d) Personal Fall Arrest and Fall Restraint Systems
Paragraph (d) of this section addresses personal fall arrest
systems and fall restraint systems used to satisfy the requirements
under subpart CC to provide fall protection.
Paragraph (d) was not in the proposed rule but has been added to
the final rule to make clear that certain appropriate requirements of
subpart M apply to subpart CC. Paragraph (d) requires the use of
personal fall arrest system components in personal fall arrest and fall
restraint systems required by subpart CC. These systems must conform to
all of the criteria in Sec. 1926.502 of subpart M, except Sec.
1926.502(d)(15). Section 1926.502(d)(15) provides general criteria for
anchorages for personal fall arrest systems, but OSHA is choosing to
apply the anchorage criteria in Sec. 1926.1423(g)(3) rather than the
criteria in Sec. 1925.502(d)(15). This approach is consistent with the
approach to requirements for personal fall arrest and fall restraint
systems provided in Sec. 1926.760(d)(2) of subpart R, except for the
exclusion of Sec. 1926.502(d)(15).
Paragraph (e) Fall Protection Requirements for Non-Assembly/Disassembly
Work
Paragraph (e) of this section addresses fall protection
requirements for employees engaged in work other than assembly/
disassembly work (``non-A/D'' work). For such work, in certain
circumstances, employers are required to provide and ensure the use of
fall protection equipment for employees who are on a walking/working
surface with an unprotected side or edge more than 6 feet above a lower
level.
C-DAC discussed different trigger heights for fall protection
requirements for particular types of cranes and derricks. Ultimately,
C-DAC concluded that the requirements for fall protection should remain
consistent with 29 CFR part 1926 subpart M, which generally requires
fall protection at heights at and above 6 feet, as much as possible.
(As discussed below, for assembly/disassembly (A/D) work, the Committee
recommended fall protection beginning at 15 feet.) C-DAC also
determined that operators do not need to be tied off while moving to
and from their cabs, and paragraph (e)(1) of this section, discussed
below, therefore requires fall protection equipment only when employees
are moving point-to-point on booms or while at a work station (with
certain exceptions). The Committee determined that the steps,
handholds, and railings required under
[[Page 48002]]
Sec. 1926.1423(c) protect operators moving to and from their
workstations and eliminate the need for additional fall protection
equipment.
Paragraph (e)(1) Non-Assembly/Disassembly: Moving Point to Point
Paragraph (e)(1)(i) of this section requires employers to provide
and ensure the use of fall protection equipment at 6 feet and above
when an employee is moving point to point on non-lattice booms (whether
horizontal or not horizontal). Moving point to point is defined in
Sec. 1926.1401 and refers to when an employee is going to or coming
from a work station.
C-DAC determined that non-lattice booms generally present more
hazards to workers who must walk them to reach other work areas,
devices, and equipment attached to it than lattice booms. Non-lattice
booms are typically of the extensible type. As a result, as members
noted, the walking/working surfaces on these types of booms are often
oily (from the hydraulic mechanisms). Also, since the boom sections
extend and retract, it is typically infeasible to provide boom walkways
and other safety features. Because they tend to be slippery from oil,
the Committee concluded that they are especially hazardous to move
across even when horizontal. Therefore, where an employee is required
to move point to point on a non-lattice boom, the Agency decided to
remain consistent with the requirements in 29 CFR part 1926 subpart M
to require fall protection at heights at or above 6 feet and the final
rule requires fall protection when the fall distance is greater than 6
feet.
Paragraph (e)(1)(ii) applies the same fall protection requirements
to point to point movement on lattice booms that are not in a
horizontal position. The Committee found that in non-A/D work, an
employee may, for example, need to move point-to-point on a lattice
boom to inspect a part that is suspected to need repair, or to make a
repair (such as replacing a broken or missing cotter pin). In many of
these situations, the boom will not be horizontal, since space
limitations often make it difficult to lower the boom to do this work.
The Committee determined that it is both necessary and feasible for
fall protection to be used in such instances. Typically, the fall
protection that would be used would consist of a double-lanyard or
similar personal fall arrest system. Since the boom in these instances
would be elevated, there would usually be a point on the boom above the
level of the employee's feet to which the lanyard could be attached.
In contrast, it is uncommon for an employee to need to move point-
to-point on a horizontal lattice boom for non-A/D work. If work does
need to be done, such as making an inspection or repair as discussed
above, the employee would usually get access to their work station with
a ladder. In those instances when the employee must traverse the boom
itself, the Committee concluded that it would be inappropriate to
require fall protection for the reasons discussed below.
The key difficulty in providing fall protection in such instances
stems from the lack of a tie-off point above the level of the
employee's feet. The Committee discussed that most lattice booms when
horizontal would be less than 15 feet above the next lower level. At
heights below 15 feet, a personal fall arrest system tied off at the
level of the employee's feet, with a lanyard long enough to afford the
employee the range of movement necessary for this work, might not
prevent the employee from falling to the next lower level.
In construction work the problem of providing personal fall
protection in this height range, when there is no higher tie-off point,
is usually solved in one of three ways (apart from the use of ladders,
scaffolds, aerial lifts, and similar devices). One way is to use a
restraint system, which is anchored at a point that prevents the
employee from moving past an edge. The Committee discussed that this
type of system could not be used while on a boom because the boom is
too narrow. Another method is to set up a personal fall arrest system
that would arrest the employee's fall before hitting the next lower
level by using stanchions to support an elevated, horizontal life-line.
However, such stanchions must be securely fastened and whatever they
are fastened to must be able to withstand considerable forces in an
arrested fall. On a crane's lattice boom, the stanchions would have to
be attached either to the chords or the lacings.
The chords and lacings are engineered to be as light as possible,
and an engineering analysis would be needed in each case to determine
if the attachment point was sufficiently strong to withstand those
forces. Also, the Agency determines that manufacturers would be
unlikely to approve clamp-on type systems because of the likelihood of
the clamping forces damaging these critical structural components.
Similarly, the Agency determines that manufacturers would not approve
the repeated weld/removal/re-weld cycles that would be involved in
attaching and removing stanchions because this could adversely affect
the boom's structural components.
The third method commonly used in construction work is a temporary
guardrail system, but that also would require attaching stanchions to
the boom, which would be infeasible for these same reasons.
The Committee concluded that, in light of such factors, it would
not be appropriate to require fall protection when an employee moves
point-to-point on horizontal lattice booms. However, in the preamble to
the proposed rule, the Agency noted that, although it may rarely be
necessary for an employee moving point-to-point on a horizontal lattice
boom to be 15 feet or more above the next lower level, there is the
possibility of such an occurrence, such as where a horizontal boom
spans a large gap in the ground surface. At such heights a personal
fall arrest system tied off at the level of the employee's feet would
allow sufficient room for the arrest system to operate without allowing
the employee to strike the next lower level. Therefore, the Agency
requested public comment on whether proposed Sec. 1926.1423(d)(1)(ii)
\101\ should be expanded to require fall protection when an employee,
engaged in non-A/D work, is moving point-to-point on a boom that is
horizontal and the fall distance is 15 feet or more.
---------------------------------------------------------------------------
\101\ Proposed Sec. 1926.1423(d)(1)(ii) corresponds with final
Sec. 1926.1423(e)(1)(ii).
---------------------------------------------------------------------------
OSHA received three comments on this issue. (ID-0182.1; -0205.1; -
0213.1.) These commenters stated that the final rule should require
fall protection when an employee, engaged in non-A/D work, is moving
point-to-point on a boom that is horizontal and the fall distance is 15
feet or more. Accordingly, the Agency has added paragraph (e)(1)(iii)
to the final rule to require fall protection under these circumstances.
No comments were received on proposed paragraphs (d)(1)(i) and (ii),
and they are included in the final rule without change as paragraphs
(e)(1)(i) and (ii).
Paragraph (e)(2) Non-Assembly/Disassembly: While at a Work Station
Paragraph (e)(2) of this section requires employers to provide and
ensure the use of fall protection while an employee is at a work
station on any part of the equipment (including the boom, of any type),
except when the employee is at or near draw-works (when the equipment
is running), in the cab, or on the deck (see the discussion of this in
the preamble of the proposed rule, where this paragraph was denominated
as Sec. 1926.1423(d)(2); 73
[[Page 48003]]
FR 59802, Oct. 9, 2008). No comments were received on this paragraph;
it is included in the final rule without change other than its
redesignation.
Paragraph (f) Assembly/Disassembly
Paragraph (f) of this section requires the employer to provide and
ensure the use of fall protection equipment during assembly and
disassembly (A/D) work for employees who are on a walking/working
surface with an unprotected side or edge more than 15 feet above a
lower level, except when the employee is at or near draw-works (when
the equipment is running), in the cab, or on the deck (see the
discussion of this in the preamble of the proposed rule, where this
paragraph was denominated as Sec. 1926.1423(e); 73 FR 59802, Oct. 9,
2008). No comments were received on this paragraph; it is included in
the final rule without change other than its redesignation.
Paragraph (g) Anchorage Criteria
Paragraph (g) of this section requires the use of, and specifies
criteria for, anchorage points in personal fall arrest systems,
positioning device systems, and fall restraint systems.\102\ Paragraph
(g)(1) provides that Sec. Sec. 1926.502(d)(15) and 1926.502(e)(2) of
subpart M apply to equipment covered by subpart CC only to the extent
delineated in paragraph (g)(2). Sections 1926.502(d)(15) and
1926.502(e)(2) provide, respectively, anchorage criteria for personal
fall arrest systems and positioning device systems. As discussed below
with respect to paragraph (g)(2), C-DAC determined that the particular
circumstances associated with the use of personal fall arrest systems
and positioning device systems on equipment covered by subpart CC
necessitate specific criteria for the anchorages of such systems.
Therefore, OSHA added paragraph (g)(1) to this section of the final
rule to make clear that the general anchorage criteria in Sec.
1926.502 apply to equipment covered by subpart CC only as delineated in
paragraph (g)(2), discussed below (see also discussion above of Sec.
1926.500).
---------------------------------------------------------------------------
\102\ ``Personal fall arrest system'' and ``Positioning device
system'' are defined in Sec. 1926.1401. These definitions parallel
those in Sec. 1926.500(b) of subpart M. ``Fall restraint system''
is also defined in Sec. 1926.1401. This definition parallels the
one in Sec. 1926.751 of subpart R. As with other definitions
applicable to this section, C-DAC endeavored, to the extent possible
and appropriate, to use terminology that is familiar to the
industry.
---------------------------------------------------------------------------
Paragraph (g)(2) of this section, Anchorages for personal fall
arrest and positioning device systems, contains requirements for
anchorage points used in personal fall arrest and positioning device
systems (this was denominated paragraph (f) in the proposed rule).
Sections 1926.1423(g)(2)(i) and 1926.1423(g)(2)(ii) permit personal
fall arrest systems and positioning systems to be anchored to any
apparently substantial part of the equipment unless a competent person,
from a visual inspection, without an engineering analysis, would
conclude that the applicable criteria in Sec. 1926.502 of subpart M of
this part would not be met. An apparently substantial part of the
equipment is a part that would appear substantial to a reasonable
competent person. The subpart M criteria include, for personal fall
arrest systems, 5,000 pounds per employee or twice the potential impact
load of an employee's fall (in addition to other requirements) (Sec.
1926.502(d)(15)); for a positioning device, 3,000 pounds or twice the
potential impact load of an employee's fall, whichever is greater (in
addition to other requirements) (Sec. 1926.502(e)(2)).
Most of the equipment covered by the standard is designed to lift
and support weights much heavier than these. Apparently substantial
parts of the equipment are, therefore, typically capable of meeting the
subpart M capacities. Consequently, C-DAC determined that the criteria
in Sec. Sec. 1926.1423(g)(2)(i) and 1926.1423(g)(2)(ii) are
appropriate and would avoid burdening employers with what it considered
to be the unnecessary expense of obtaining engineering analyses for
each part that would serve as an anchor. (See the discussion of these
provisions in the preamble of the proposed rule under proposed rule
paragraph (f) of this section, 73 FR 59802, Oct. 9, 2008.)
One commenter suggested revising the provision to require a
competent person to supervise the selection, use, and inspection of
fall arrest and positioning anchorages. (ID-0178.1.) This commenter
suggested that this revision was needed to avoid compatibility issues
and to emphasize the competent person's planning role. OSHA declines to
adopt the commenter's suggestion. As explained above, this provision is
included because the suitability of substantial parts of the equipment
for anchoring fall arrest and positioning device systems will often be
readily apparent, and the employer will only need to seek a competent
person's judgment if there is some question as to the anchorage's
suitability. The revision suggested by the commenter would contravene
this intent.
Paragraph (g)(2)(iii) requires that attachable anchor devices
(portable anchor devices that are attached to the equipment) meet the
applicable anchorage criteria in Sec. 1926.502(d)(15) for personal
fall arrest systems and Sec. 1926.502(e)(2) for positioning device
systems. These criteria are the same as those discussed with respect to
paragraph (g)(2) for personal fall arrest and positioning device
systems.
Paragraph (g)(3), Anchorages for fall restraint systems, requires
fall restraint systems to be anchored to any part of the equipment that
is capable of withstanding twice the maximum load that a worker may
impose on it during reasonably anticipated conditions of use. Since
fall restraint systems do not arrest a worker's fall (instead they
prevent a fall from occurring), the anchorage does not need to be able
to support the significantly greater force generated during an arrested
fall. OSHA relies on C-DAC's determination that having the anchorage
support twice the maximum anticipated load provides an adequate margin
of safety when a fall restraint system is used.
The Agency made several changes to text originally proposed as
paragraph (f) of this section, and now designated as final paragraph
(g) for the purposes of clarity and consistency. OSHA devoted final
paragraphs (g)(2)(i) and (g)(2)(ii) to personal fall arrest systems and
positioning device systems, respectively, and added references to
Sec. Sec. 1926.502(d)(15) and 1926.502(e)(2) to specify which of the
criteria in Sec. 1926.502 of subpart M are applicable to anchorages
used to comply with this section. OSHA concludes these changes improve
the clarity of the final rule. In addition, final paragraph (g) uses
the terms ``personal fall arrest'' instead of ``fall arrest'' and
``fall restraint systems'' instead of ``restraint systems'' to use the
defined terms from Sec. 1926.1401 and maintain consistency with other
construction standards.
Paragraph (h) Tower Cranes
Paragraph (h) of this section specifies fall protection
requirements specific to tower cranes. Note that the final rule uses
the terminology ``erecting, climbing, and dismantling'' with regard to
tower cranes rather than ``assembly'' and ``disassembly;'' or the term
``erecting/dismantling'' used in the proposed rule, because this
terminology reflects the industry's use of these terms.
Paragraph (h)(1) Work Other Than Erecting, Climbing, and Dismantling
Paragraph (h)(1) of this section addresses fall protection
requirements for work other than erecting, climbing, and dismantling.
The employer is required to provide and ensure the use
[[Page 48004]]
of fall protection equipment for employees who are on a walking/working
surface with an unprotected side or edge more than 6 feet above a lower
level. The exceptions to this requirement would be when the employee is
at or near draw-works (when the equipment is running), in the cab, or
on the deck. (See the discussion of this provision in the preamble of
the proposed rule at 73 FR 59803, Oct. 9, 2008, where it was designated
as paragraph (g)(1)). No comments were received on this paragraph; it
is included in the final rule without change other than its revised
heading and redesignation from paragraph (g)(1) in the proposed rule to
(h)(1) in the final rule.
Paragraph (h)(2) Erecting, Climbing, and Dismantling
Proposed Sec. 1926.1423(g)(2) (redesignated Sec. 1926.1423(h)(2)
in the final rule) specified that, for erecting/dismantling work,
employers must provide, and ensure the use of, fall protection
equipment for employees who are on a walking/working surface with an
unprotected side or edge more than 15 feet above a lower level. (See
the discussion of that provision in 73 FR 59803, Oct. 9, 2008.) OSHA
noted in the proposed rule that C-DAC did not include the exceptions
that were included in proposed Sec. 1926.1423(g)(1) for when the
employee is at or near draw-works (when the equipment is running), in
the cab, or on the deck. The Agency stated that it was unaware of any
reason why those exceptions would not be equally applicable for Sec.
1926.1423(g)(2), and asked for public comment on this issue (see 73 FR
59803, Oct. 9, 2008).
OSHA received responses from three commenters, all of whom stated
that this exception should be added to the final rule. (ID-0187.1; -
0205.1; -0213.1.) Accordingly, OSHA has included the exception in Sec.
1926.1423(h)(2) of the final rule.
Paragraph (i) [Reserved.]
Paragraph (j) Anchoring to the Load Line
Paragraph (j) of this section permits an employer, under prescribed
conditions, to anchor a fall arrest system to the hook or other part of
a load line of a crane or derrick. Previously, Sec. 1926.502(d)(23) of
subpart M prohibited personal fall arrest systems to be attached to
``hoists except as specified in other subparts of this part.'' Former
Sec. 1926.550 in subpart N did not contain any provisions specifically
addressing this issue. Therefore, since the hook or other part of a
load line is connected to a hoist in the crane or for the derrick,
attaching a personal fall arrest system in this manner had been
prohibited by subpart M.
Prior to this rulemaking, OSHA received inquiries asking whether a
crane's hook or load line may be used as an anchorage point for fall
protection. Using a crane for such purpose would be particularly useful
in many situations, especially where establishing a suitable anchor
point would be otherwise very difficult. OSHA asked C-DAC to consider
whether there is any reason to prohibit using a crane or derrick for
such purpose. C-DAC determined that the hook or load line of a crane
could be used safely as an anchor point under the conditions set forth
in paragraph (j).\103\
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\103\ OSHA modified the language from the proposed rule so that
final paragraph (j) of this section refers to a ``personal fall
arrest system'' rather than a ``fall arrest system.'' This
modification was made for the purpose of clarity to use the terms
defined in Sec. 1926.1401, Definitions, and to maintain consistency
in the construction standards.
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Paragraph (j)(1) allows the hook or load line to be used as an
anchorage point when a qualified person has determined that the set-up
and rated capacity of the crane/derrick (including the hook, load line
and rigging) meets or exceeds the requirements in Sec.
1926.502(d)(15). C-DAC concluded that, as long as the crane or derrick
has sufficient capacity to meet those criteria, there is no reason to
prohibit its use for this purpose.
C-DAC did conclude, however, that the expertise of a qualified
person is required to determine whether specific criteria are met when
anchoring to the hook or load line. The criteria in Sec.
1926.502(d)(15) were developed to ensure that fall protection
anchorages provide adequate employee protection. Anchorages used for
personal fall arrest systems must be capable of supporting at least
5,000 pounds or designed, installed, and used as part of a complete
personal fall arrest system which maintains a safety factor of at least
two. A number of factors related to the crane's capacity in the
particular configuration and set-up involved would need to be
considered, including, in some cases, the angle of the fall arrest
lanyard to the boom if a fall were to occur. In addition, the qualified
person would need to determine whether the set-up is such that it would
not cause an equipment failure, such as a broken cable or chain, for
the load line to serve as an anchorage for a personal fall arrest
system. These determinations necessarily would include consideration of
the characteristics of the particular equipment involved and the
limitations of its operation. OSHA agrees that a qualified person must
determine whether the criteria are met, and has included that
requirement in paragraph (j)(1).
Paragraph (j)(2) requires that the equipment operator be at the
work site and informed that the equipment is being used to anchor a
personal fall arrest system. This would ensure that the operator is
available to make any necessary adjustments, such as moving the boom or
load lines. Further, in the event of an emergency that results in a
tied-off employee being suspended from the hook or load line, the
operator would be available to bring the worker to the ground safely.
OSHA received three comments on the provisions relating to
anchoring to the load line, and one member of the public submitted
written testimony on the provisions prior to the hearing on the
proposed rule. Two of the commenters responded positively to the
provisions (ID-0155.1; -0203.1) and one commenter stated the provisions
were a necessary improvement that would allow employers to provide fall
protection in the narrow circumstances where there are no viable
options other than the crane hook (ID-0203.1).
The third commenter was opposed to the provisions and stated that
anchoring to the load line should be prohibited. (ID-0178.1.) This
commenter stated that cranes are only engineered to lift straight up
and straight down and that retracting a hook at any other angle may jam
or break the cable or chain, which would result in a dropped load. OSHA
concludes paragraph (j) addresses this concern for the reasons
discussed below.
Written testimony submitted prior to the hearing expressed the
concern that, under Sec. 1926.1417(e), which allows a suspended load
to be left unattended by the equipment operator under certain
conditions, an employee's personal fall arrest system could be anchored
to a load line at the same time a load is unattended. (ID-0333.2.) This
party suggested that the rule make clear that fall protection should
never be anchored to the load line when the load is unattended.
OSHA disagrees. In fact, the intent of Sec. 1926.1423(j) is to
allow an employee's personal fall arrest system to be anchored to the
load line only when there is no load suspended from the line. This is
implicit in the requirement of paragraph (j)(1) that the qualified
person determine that the set-up and rated capacity (including the
hook, load line, and rigging) meets or exceeds the requirements of
Sec. 1926.502(d)(15). If it
[[Page 48005]]
were permissible for there to be a suspended load, the parenthetical
would include the word ``load,'' for the weight of any load would
certainly affect the ability of the hook or load line to serve as a
fall protection anchorage. To make the rule's intent clear, OSHA is
adding paragraph (j)(3), which states that no load may be suspended
from the load line, as an additional condition that must be met when
anchoring a personal fall arrest system to the hook or load line.
Paragraph (k) Training
In the preamble to the proposed rule, the Agency requested comments
on its proposed training requirements. One commenter pointed out that a
requirement for fall protection training had not been included in the
proposed rule and is needed. (ID-0178.1.) While training is already
required under Sec. 1926.21(b)(2),\104\ OSHA has determined that
including a more specific training requirement regarding fall
protection in subpart CC will highlight the requirement and facilitate
compliance.
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\104\ That provision states: ``The employer shall instruct each
employee in the recognition and avoidance of unsafe conditions and
the regulations applicable to his work environment to control or
eliminate any hazards or other exposure to illness or injury.''
---------------------------------------------------------------------------
Therefore, in the final rule, paragraph (k) has been added to this
section. It requires employers to ensure that each employee who may be
exposed to a fall hazard while on, or hoisted by, equipment covered by
this subpart is trained on the requirements in subpart CC that address
fall protection and the applicable requirements of Sec. Sec. 1926.500
and 1926.502 in subpart M. This provision supplements other applicable
training provisions in Sec. 1926.1430 (see discussion below of Sec.
1926.1430, Training). As noted above, OSHA has made a conforming
amendment to Sec. 1926.500(a)(4) to make clear that the fall
protection training requirements in Sec. 1926.503 of subpart M do not
apply to fall protection systems used to comply with subpart CC. As a
result, the training requirements applicable to Sec. 1926.1423 are
found exclusively in Sec. 1926.1423(k).
General Comment
OSHA received a comment from a safety association generally
objecting to the adequacy of the fall protection required under this
section. (ID-0178.1.) The commenter stated that OSHA should reference
certain ANSI/ASSE standards addressing fall protection in construction
work, including: ANSI/ASSE A10.32--2004, Fall Protection Systems for
Construction and Demolition Operations; ANSI/ASSE A10.18--2007, Safety
Requirements for Temporary Roof and Floor Holes, Wall Openings,
Stairways, and Other Unprotected Edges; and ANSI/ASSE A10.28--1998 (R
2004), Safety Requirements for Work Platforms Suspended from Cranes or
Derricks. However, the commenter has not pointed to which particular
provisions of these consensus standards it believes are appropriately
included in this rule or that it believes would better effectuate the
purpose of this section than those developed by C-DAC.
As discussed above, C-DAC determined that fall protection from
cranes and derricks presented unique problems and that this section
should address those problems while only incorporating limited
provisions of OSHA's general fall protection standard in subpart M.
Upon reviewing the record, including the comments submitted by the
commenter and others on the specific provisions contained in the
proposal, OSHA continues to conclude this approach is appropriate.
Absent additional information as to why OSHA should adopt or reference
provisions in the standard the commenter has cited, OSHA is unable to
assess whether any such provisions would better address fall protection
issues than the provisions of this final rule.
Section 1926.1424 Work Area Control
Section 1926.1424(a) addresses the hazard of employees being
struck, pinched or crushed within the swing radius of the equipment's
rotating superstructure. Paragraph (a)(1) states that the precautions
in paragraph (a)(2) must be taken when there are accessible areas in
which the equipment's rotating superstructure (whether permanently or
temporarily mounted) poses a reasonably foreseeable risk of either: (i)
striking and injuring an employee; or (ii) pinching/crushing an
employee against another part of the equipment or another object.
Paragraph (a)(1) is adopted as proposed.
Included in Sec. 1926.1401, Definitions of this rule is the
definition for ``upperworks'', which C-DAC identified as a synonym for
the term ``superstructure'', used in the regulatory text of paragraph
(a)(1) of this section, as well as the term ``upperstructure''.
However, two commenters noted that the proposed definition for
``upperworks'' did not take into consideration the fact that many
rough-terrain cranes have the engine mounted in the carrier, or lower
carriage of the crane, instead of the superstructure. (ID-0292.1; -
0131.1.) In response, OSHA modified the definition of ``upperworks'' to
acknowledge that the presence of an engine is not always a defining
characteristic of that portion of the crane.
Under paragraph (a)(2), the employer is required to institute two
measures to prevent employees from entering these hazard areas.
Specifically, under paragraph (a)(2)(i), the employer must train
employees assigned to work on or near the equipment in how to recognize
these areas.
Paragraph (a)(2)(ii) requires the employer to erect and maintain
control lines, warning lines, railings, or similar barriers to mark the
boundaries of the hazard areas, but contains an exception when such a
precaution is infeasible. If it is neither feasible to erect such
barriers on the ground nor on the equipment, the employer is required
to mark the danger zone with a combination of warning signs and high
visibility markings on the equipment that identify the hazard areas. In
addition, the employer must train employees to understand what those
markings signify.
OSHA received comments advocating an exemption for cranes used in
the railroad industry, especially cranes moving along a track. (ID-
0170.1; -0176.1; -0342.) One commenter suggested that the requirement
for barriers was impractical for cranes moving along a track, as the
barriers would have to be continually reset.
These objections to the requirement for barriers are not
persuasive. First, the requirement for barriers is not a new
requirement. Former Sec. 1926.550(a)(9) required barricades to prevent
employees from being struck or crushed by the crane, including the
swing radius of the rear of the rotating superstructure. The railroad
employers did not provide any evidence that they were unable to comply
with the previous requirement.
Second, the rule already anticipates that for certain equipment a
traditional type of barrier might not be practical and instead permits
the use of a barrier that attaches directly to, and will move with, the
equipment.
Finally, paragraph (a)(2)(ii) of this section permits the employer
to identify these hazard areas with warning signs and high visibility
markings on the equipment when it is not feasible to erect a barrier on
the ground or the equipment.
Therefore, paragraph (a)(2) is being promulgated as proposed.
To prevent struck-by and crushed-by injuries and fatalities,
paragraph (a)(3) is designed to help protect employees who must
sometimes enter the hazard area to
[[Page 48006]]
perform work, by ensuring that there is adequate communication and
coordination between the operator and the employee in the danger area.
Under paragraph (a)(3)(i), before an employee goes in that area the
employee (or someone instructed by the employee) has to ensure that the
operator is informed that the employee is going to that location. This
is an essential first step in preventing the operator from moving the
superstructure and causing injury to that employee. This provision is
adopted without change from the proposal.
Paragraph (a)(3)(ii)(A) of this section of the proposed rule stated
that the operator was prohibited from rotating the superstructure
unless and until he/she gave a warning that the employee in the hazard
area understood as a signal that the superstructure was about to be
rotated. This was intended to give the employee time to get to a safe
area. Alternatively, under proposed paragraph (a)(3)(ii)(B), the
operator could rotate the superstructure if he/she was informed, in
accordance with a prearranged system of communication, that the
employee who was in the hazard area had moved to a safe position.
Several commenters suggested that the compliance option in proposed
paragraph (a)(3)(ii)(A) was insufficient to guarantee the safety of the
employee in the hazard area. (See, e.g., ID-0122.0.) A similar issue
was discussed in connection with Sec. 1926.1404(e) of the final rule.
Section 1926.1404(e) addresses employees in the swing radius area or
crush/caught-in-between zone during the assembly/disassembly process.
(See discussion of Sec. 1926.1404(e) for additional information.)
For the reasons discussed with regard to the issue raised under
Sec. 1926.1404(e), OSHA has removed proposed paragraph (a)(3)(ii)(A)
from this section, revised proposed paragraph (a)(3)(ii)(B), and
renumbered it paragraph (a)(3)(ii).
Paragraph (a)(3)(ii) requires the operator to get information that
the employee has cleared the hazard area before rotating the
superstructure. The method of communication must be one that is pre-
arranged. Examples of such a system are provided in the discussion of
Sec. 1926.1404(e) above.
For a full discussion of C-DAC's rationale for the provisions in
paragraph (a), see the preamble to the proposed rule (73 FR 59803-
59804, Oct. 9, 2008).
Proposed paragraph (b) of this section addressed situations where
multiple pieces of equipment are located in such proximity that their
working radii overlap. Such situations pose the danger of employees
being pinched/crushed between the equipment and being injured as a
result of unintended movement or collapse when pieces of equipment
collide. To prevent such accidents, the proposal required the
controlling entity to coordinate the operations of these pieces of
equipment. In the event that there was no controlling entity, the
proposal required the employers operating the equipment to institute a
coordination system.
A commenter asked that Sec. 1926.1424(b) be deleted, or
alternatively, that an exemption be created for employers in the home
building industry. (ID-0232.1.) However, this commenter did not provide
evidence that equipment coordination is any less necessary on a
residential job site than it is on other construction job sites.
Another representative of the building industry also objected to
imposing obligations on a ``controlling entity,'' but did not dispute
the necessity of equipment coordination on construction job sites. (ID-
0214.1.) C-DAC concluded that the controlling entity, to the extent
there is one, is in the best position to take responsibility for the
coordination required by paragraph (b). OSHA has not been persuaded
otherwise.
Both commenters nominated members which served on the negotiated
rulemaking committee. Neither of their respective nominees dissented on
these provisions during the negotiated rulemaking meetings and neither
organization has explained why its position is different from that of
its nominated member. In light of this inconsistency, OSHA has given
diminished weight to these comments.
The C-DAC language for proposed paragraph (b) did not address a
situation in which only one employer is responsible for the operation
of multiple pieces of equipment. OSHA requested comment about revising
the C-DAC language to make clear that such an employer would be
required to institute a coordination system. No comments were received
on this issue. OSHA has therefore revised paragraph (b) to address
situations where one employer is operating multiple pieces of
equipment, without a controlling entity at the jobsite.
Section 1926.1425 Keeping Clear of the Load
This section addresses the hazards posed to employees from being
struck or crushed by the load. (See the preamble to the proposed rule
for a full discussion of C-DAC's rationale for the provisions in this
section (73 FR at 59805-59806, Oct. 9, 2008).)
Paragraph (a)
Paragraph (a) of this section requires the employer to use
available hoisting routes that minimize employee exposure to hoisted
loads to the extent consistent with public safety. No comments were
received on this provision; it is promulgated as proposed.
Paragraph (b)
Paragraph (b) of this section specifies that employees cannot be in
the fall zone when the equipment operator is not moving a suspended
load, with limited exceptions as described in paragraphs (b)(1)-(3).
Fall zone is defined in Sec. 1926.1401 as ``the area (including
but not limited to the area directly beneath the load) in which it is
reasonably foreseeable that partially or completely suspended materials
could fall in the event of an accident.'' The fall zone thus includes
both the area directly under the load as well as other areas into which
it is reasonably foreseeable that suspended materials could fall. For
example, if wind is causing the load to swing, the employer would need
to consider the extent to which the load is swinging or may swing in
determining the extent of the fall zone. Another example is where a
bundle of materials is suspended, and some loose materials at the top
of the bundle may slide off sideways. In such a case those materials
would foreseeably fall outside the area directly beneath the load.
Paragraph (b)(1) permits employees engaged in hooking, unhooking or
guiding a load to be within the fall zone while engaged in these
activities. No comments were received on this paragraph; it is
promulgated as proposed.
Paragraph (b)(2) permits employees engaged in the initial
attachment of the load to a component or structure to be within the
fall zone. One example of this activity is: A subassembly of steel
members is hoisted for attachment to a structure. When initially
attaching the lower portion of that subassembly, an employee is within
the fall zone of the load. In this example, the employee engaged in the
initial attachment of the subassembly to the structure would be
permitted to be within the fall zone; that work cannot be done
otherwise. No comments were received on this paragraph; it is
promulgated as proposed.
Paragraph (b)(3) allows workers to be present in the fall zone when
operating a concrete hopper or concrete bucket. The employee operating
the hopper or bucket is necessarily in the fall zone
[[Page 48007]]
since the hopper or bucket is suspended while the employee operates the
releasing mechanism.
One commenter suggested adding a requirement that there be a
competent supervisor for these operations and a requirement for
employee training for activities covered by paragraph (b)(3). (ID-
0120.1.) However, that commenter did not provide an explanation of how
this would increase safety for the employee or any support for such
additional requirements. Nor did the commenter identify any reason why
the activities covered by paragraph (b)(3) would require different or
additional supervision or training requirements than the activities
covered by paragraphs (b)(1) or (b)(2). C-DAC did not recommend any
additional supervision or training requirements for paragraph (b)(3),
and OSHA is not persuaded that there is a safety justification for
deviating from C-DAC's determination. Therefore, this paragraph is
promulgated as proposed.
A representative of the building industry suggested in its comment
that an exception should be added for dedicated spotters and fall
monitors. (ID-0232.1.) This marks a change from the position of that
organization's nominated representative during the negotiated
rulemaking. (See discussion of this organization's comments under
paragraph (c) of this section.) C-DAC did not conclude that an
exception for spotters and fall monitors was warranted, and the NAHB
did not present evidence to persuade OSHA otherwise. OSHA defers to the
expertise of the Committee and this paragraph is promulgated as
proposed.
Paragraph (c)
Paragraph (c) of this section deals with the work activities
addressed in Sec. Sec. 1926.1425(b)(1) and (b)(2). These requirements
were necessary to ensure employee safety, given the additional risks
posed while employees are performing those tasks in the fall zone.
Paragraph (c)(1) requires that the load be rigged to prevent
unintentional displacement, so that workers in the fall zone are less
likely to be struck by shifting materials. No comments were received on
this paragraph; it is promulgated as proposed.
Paragraph (c)(2) requires the use of hooks with self-closing
latches or their equivalent, to prevent accidental failure of the
hooks. However, the use of ``J'' type hooks is permitted for setting
wooden trusses. This exception is designed to enable the truss to be
unhooked without the need for an employee to go out on the truss. This
avoids the additional exposure to fall hazards that would otherwise
occur from going out on the truss to release a latched hook.
OSHA received a comment from the building industry requesting that
the exception permitting the use of J-hooks when lifting trusses be
extended to lifting wall panels as well; it asserts that the same
additional exposure to fall hazards would be present. (ID-0232.1.)
This commenter nominated a member who served on the negotiated
rulemaking committee. The member did not dissent during the negotiated
rulemaking to this provision. The commenter has not explained why it
has changed its position on this issue or why its current position
differs from that of its nominated member. In light of this
inconsistency, OSHA has given diminished weight to its comment.\105\
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\105\ A further basis for according diminished weight to this
comment is that this commenter had a direct channel for presenting
its interests to the committee--its nominee member--and a
presumptive ability to direct its member's negotiating position.
When such an organization submits negative comments to the proposed
rule opposing both its own member's negotiating position and the
committee's consensus, it undermines the negotiating process in a
similar manner as when a member contravenes the ground rules. The
integrity of the negotiating process is central to effectuating the
purpose of the Negotiated Rulemaking Act of 1990.
The Agency also notes that, in future negotiated rulemakings,
one of the factors that it plans to consider in assessing
nominations submitted by organizations is whether the nominee can
demonstrate that he/she has documented authority to bind the
organization to agreements and the position the nominee takes in
such negotiated rulemaking.
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In addition, OSHA notes that there are two important distinctions
between setting roof trusses and setting wall panels. First, there is
no need for a worker to be exposed to a fall hazard to detach a hook
with a self-closing latch from a wall panel. Once the wall panel has
been set, a worker can readily reach the hook from a ladder on the
interior side of the panel. Second, wall panels typically often weigh
more than wooden roof trusses; they pose both struck-by and crushed-by
risks to workers if the hook becomes prematurely detached from the
load. Such unintended detachment is more likely to occur with a J-hook
because it lacks a hook gate.
One commenter suggested that the exception for J-hooks should
include requirements for training and rigging. (ID-0218.1.) This
commenter acknowledged that the use of J-hooks is prevalent in the
industry, and indicated that the specialized training and rigging
requirements it was proposing were intended to protect the component
being lifted. The commenter did not suggest that its proposed
requirements would enhance employee safety. Therefore, this paragraph
is promulgated as proposed.
Paragraph (c)(3) requires the use of a qualified rigger \106\ in
the rigging of materials in the situations addressed by paragraph (c).
Proper rigging reduces the risk for workers who must perform work in
the fall zone. No comments were received on this provision; it is
promulgated as proposed.
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\106\ Section 1926.1401 defines a ``qualified rigger'' as a
rigger who meets the criteria for a qualified person.
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Paragraph (d) Receiving a Load
Paragraph (d) prohibits all employees except those needed to
receive a load from being in the fall zone when it is being landed. No
comments were received on this provision; it is promulgated as
proposed.
Paragraph (e)
Paragraph (e) concerns tilt-up and tilt-down operations. In these
operations, one end of a component, such as a precast panel, is either
raised, tilting the component up, usually from a horizontal position
(often on the ground) to a vertical position; or lowered, tilting the
component down, usually from a vertical position to a horizontal
position on the ground or other surface. Note that the requirements in
this paragraph do not apply when receiving a load.
As with any other suspended load, it is dangerous to be directly
beneath the load because of the possibility of a failure or error that
would cause the load to fall or be accidentally lowered onto an
employee. To minimize the risk of such accidents, paragraph (e)(1) of
this section provides that no employee must be directly under the load
during a tilt-up or tilt-down operation. Section 1926.1401 defines
``directly under the load'' to mean ``a part or all of an employee is
directly beneath the load.'' No comments concerning this provision were
received; therefore, it is promulgated as proposed.
While paragraph (e)(1) prohibits employees directly under the load,
paragraph (e)(2) of this section provides an allowance for employees to
be in the fall zone (but not directly under the load), when those
employees are ``essential to the operation'' during a tilt up or tilt
down operation.
In the preamble to the proposed rule, the Agency provided a list of
activities it determined to typically be infeasible to do outside the
fall zone and therefore an employee would be in the fall zone for these
activities. The Agency requested public comment on whether there were
additional activities that
[[Page 48008]]
would be infeasible to do from outside the fall zone, and whether it
would be appropriate to add a definition of ``essential to the
operation'' to the standard.
One commenter responded, asserting that the phrase ``essential to
the operation'' does not need to be defined. (ID-0205.1.)
No commenters disagreed with the three scenarios listed in the
preamble to the proposed rule describing instances where an employee is
``essential to the operation'' and must be within the fall zone.
However, one commenter suggested adding to the list the activities of
making initial connections and securing bracing. (ID-0205.1.)
OSHA believes that those two additional tasks--making initial
connections and securing bracing--fall within part of the third
scenario listed in the proposed rule preamble (i.e., to ``* * *
initially attach [the load] to another component or structure'').
For clarity, OSHA has decided to modify paragraph (e)(2) by adding
the operations listed in the proposed rule and including the
recommendation of the commenter.
One comment suggested that there might be some conflict between the
NOTE in this section, Sec. 1926.1426, and Sec. 1926.1433(b)(4). The
discussion of that comment may be found in the portion of the preamble
addressing Sec. 1926.1426 of the final rule.
Section 1926.1426 Free Fall and Controlled Load Lowering
This section addresses the hazards that can arise from free fall of
the boom (live boom) during lifts. Live booms are those in which the
rate of lowering can be controlled only by a brake; a failure of the
brake will result in a free fall (i.e., unrestricted lowering) of the
boom. In contrast, for equipment that has a boom that is not ``live,''
there is a mechanism or device other than the brake which slows the
boom's lowering speed.
The uncontrolled lowering of a boom could result in an accident
which could injure or kill workers in proximity to the load or hoisting
equipment. This section prohibits use of live booms in most
circumstances. An exception is provided in limited conditions that do
not pose hazards for employees with respect to the use of older
equipment manufactured before October 31, 1984. See discussion in Sec.
1926.1426(a)(2)(i) below.
Additionally, this section specifies the circumstances under which
free fall of the load line is prohibited at Sec. 1926.1426(d).
Paragraph (a) Boom Free Fall Prohibitions
Under paragraph (a)(1) of this section, the use of equipment in
which the boom is designed to free fall is prohibited under six
specified conditions.
Paragraph (a)(1)(i) prohibits the use of a live boom when an
employee is in the fall zone of the boom or load (see the explanation
of ``fall zone'' in the discussion above of Sec. 1926.1425(b)).
Section 1926.1425, Keeping clear of the load, of this standard
recognizes that there are some situations in which certain employees
need to be positioned in the fall zone to perform their assigned
duties. However, when equipment with a live boom is in use, the
likelihood that an employee would sustain a serious injury or be killed
by a free fall is very high when an employee is in the fall zone of the
boom or load.
Paragraph (a)(1)(ii) prohibits use of a live boom when an employee
is being hoisted by equipment. If a hoisted employee was dropped in an
uncontrolled fall, the likelihood of a serious injury would be high.
No comments were received for paragraphs (a)(1)(i) or (ii); they
are promulgated as proposed.
Paragraph (a)(1)(iii) as set forth in the proposed rule, would have
prohibited the use of a live boom where the load or boom is directly
over a power line, or over any part of the area extending the Table A
of proposed Sec. 1926.1408 clearance distance to each side of the
power line. The diagram below illustrates a situation in which a load
on a live boom is over the area extending the Table A clearance
distance to each side of the power line:
[GRAPHIC] [TIFF OMITTED] TR09AU10.000
As discussed above in relation to Sec. Sec. 1926.1407 through
1926.1411, equipment making electrical contact with power lines is one
of the primary causes of equipment-related deaths on construction sites
and, to prevent such contact, those sections would require equipment to
maintain minimum distances from power lines.
In the proposed rule, OSHA determines that there are circumstances
where neither the boom nor the load are directly over the power line or
Table A clearance distance, but where the power line or the Table A
clearance distance is within the fall path of the boom or load. This
circumstance is depicted in the following illustrations:
[[Page 48009]]
[GRAPHIC] [TIFF OMITTED] TR09AU10.001
[GRAPHIC] [TIFF OMITTED] TR09AU10.002
In Illustration A, neither the boom nor the load is above the power
line or any part of the Table A zone. However, if the boom were to
fall, the boom would cross into the Table A zone. In Illustration B,
neither the boom nor load is above the power line or any part of the
Table A zone. However, if the boom were to fall, the load would cross
into the Table A zone.
OSHA requested comment in the proposed rule as to whether Sec.
1926.1426(a)(1)(iii) should be modified to also prohibit the equipment
from being positioned such that the fall path of the boom or load would
breach the Table A of Sec. 1926.1408 clearance distance. This
requirement was proposed to prevent the boom, hoist line, or load from
contacting an energized power line and carrying the electric current
back through the equipment. One commenter, in two comments, agreed with
the proposed change. (ID-0052.0; -0092.1.) No commenters disagreed.
Therefore, OSHA has modified Sec. 1926.1426(a)(1)(iii) to prohibit
free fall (live boom) where the power line or the Table A clearance
distance is within the fall path of the boom or the load.
Paragraph (a)(1)(iv) prohibits use of a live boom where the load is
over a shaft. Employees in a shaft receiving a load are at high risk of
death or injury from a free falling boom as the shaft severely limits
the ability to avoid the falling boom. Because this hazard only exists
when there is an employee in the shaft, OSHA has specified in Sec.
1926.1426(a)(1)(iv) of the final rule that the live boom prohibition
only applies when at least one employee is in the shaft. This language
is different from the language of Sec. 1926.1426(a)(1)(v), regarding
cofferdams, because a shaft is typically a smaller work space than a
cofferdam, thus, a shaft under a load is necessarily in the fall zone
of the boom or the load.
Paragraph (a)(1)(v) prohibits free fall of a boom when the load is
over a cofferdam, except where there are no employees in the fall zone
of the boom or load. Much like employees who must receive a suspended
load in a shaft, employees have limited ability to escape a free
falling boom or load in a cofferdam. However, cofferdams are typically
much larger work spaces than shafts, the fall zone of a falling boom or
load may only affect one part of the cofferdam. Therefore, this
provision only applies when employees are in the fall zone of the boom
or load.
OSHA noted an ambiguity in proposed Sec. 1926.1426(a)(1)(v). The
exception referred only to ``the fall zone''; OSHA determines that--to
make this provision consistent with Sec. 1926.1426(a)(1)(i)
(prohibiting the use of live booms when an employee is in the fall zone
of the boom or the load)--the words ``of the boom or load'' should be
added to the language proposed for Sec. 1926.1426(a)(1)(v).
Paragraph (a)(1)(vi) prohibits use of a live boom for lifting
operations in a refinery or tank farm. A free falling boom could strike
pipes or a tank in a refinery or tank farm. Such accidental impact
could cause a release of toxic materials or conflagration. No comments
[[Page 48010]]
were received for this provision; it is promulgated as proposed.
Paragraph (a)(2) of this section is the exclusive list of
conditions under which the use of cranes with live booms is permitted.
C-DAC found that cranes with live booms can be used safely under some
circumstances and did not determine that the cost of replacing or
retrofitting all such equipment is justified as long as the use of live
boom equipment is limited to these conditions. However, none of the
conditions outlined in Sec. 1926.1426(a)(1) may be present.
Paragraph (a)(2)(i) allows the use of equipment with a live boom if
that equipment was manufactured prior to October 31, 1984, and none of
the circumstances listed in Sec. 1926.1426(a)(1) are present. ANSI
B30.5 first prohibited live booms in the 1972 version and reiterated
the prohibition in the 1982 edition, which was published on October 31,
1983, and became effective on October 31, 1984.
OSHA concludes that manufacturers would have begun to phase out
live-boom equipment when ANSI first prohibited its use in 1972 and that
few, if any, live boom equipment would have been manufactured after
October 31, 1984. Moreover, during this period, hydraulic hoisting
equipment, the design of which typically precluded boom free fall even
in its early designs, became more prevalent.
In light of these factors, the Agency concludes that most equipment
manufactured after October 31, 1984, would not have live booms. Section
1926.1426(a)(2) thus allows the older live boom equipment to be phased
out safely by restricting its use to situations in which none of the
circumstances listed in Sec. 1926.1426(a)(1) are present. However,
OSHA added a new provision to this paragraph that considers live-boom
equipment manufactured on or after October 31, 1984, and meeting the
requirements of paragraph (b) of this section, not to be subject to the
limitations of paragraph (a) of this section. OSHA considers such
equipment, when so modified, to be as safe as any equipment modified
under the requirements of paragraph (b).
Paragraph (a)(2)(ii) allows use of a live boom if the equipment is
a floating crane/derrick or is a land crane/derrick on a vessel/
flotation device and none of the circumstances listed in Sec.
1926.1426(a)(1) are present. The Committee found, and OSHA agrees, that
equipment used on the water commonly has a live boom because the
dynamics of load transfer while on water (from side to side), as well
as unexpected wave action can cause rapid changes in list and trim,
which sometimes necessitates that the operator have a free fall boom
system to compensate for these effects. Non-live systems are not fast
enough for this purpose. At the public hearing, a witness from the
maritime industry said that the ``unique tasks [associated with
operating cranes on the water] have often required and will continue to
require a modification of existing cranes and derricks so that they can
safely accomplish these specialized applications.'' (ID-0345.41.)
As a result, the Agency concludes that there is no need to modify
this provision; it is promulgated as proposed.
One commenter suggested there is a conflict between the Sec.
1926.1426(a) allowance for the limited use of free falling booms and
Sec. 1926.1433(b)(4) incorporation of the ASME standard prohibition on
the use of free falling booms. (ID-0053.1.)
Section 5-1.3.1 of ASME B30.5-2004 has a paragraph (b), which
contains its own text, as well as two subsidiary paragraphs, enumerated
(1) and (2), each of which also contains text. The ASME prohibition
against live booms is in the text of paragraph (b) of ASME B30.5-2004
sec. 5-1.3.1. Free fall is not mentioned in subsidiary paragraphs
(b)(1) or (b)(2) of ASME B30.5-2004 sec. 5-1.3.1.
Section 1926.1433 incorporates the concepts in only subsidiary
paragraphs (b)(1) or (b)(2) of ASME B30.5-2004 sec. 5-1.3.1; it does
not incorporate the portions of paragraph (b) of ASME B30.5-2004 sec.
5-1.3.1 that would conflict with Sec. 1926.1433. There is, therefore,
no conflict between Sec. Sec. 1926.1426(a) and 1926.1433(b)(4).
Paragraph Sec. 1926.1426(a)(2) is promulgated as proposed.
Paragraph (b) Preventing Boom Free Fall
Paragraph (b) of this section establishes criteria for the boom
hoist on equipment with a boom designed to free fall. Paragraphs (b)(1)
through (b)(4) specify the mechanisms or devices that a boom hoist can
utilize as a secondary means to prevent boom free fall when the primary
system fails. C-DAC determined that each of these were effective means
of preventing boom free fall, and OSHA agrees. The addition of a listed
secondary mechanism or device to prevent the fall of the boom changes
the characteristics of equipment designed with a live boom, decreasing
the risk of injury to employees. Therefore, if equipment has a boom
hoist with a secondary mechanism or device listed in paragraphs (b)(1)
through (4), it is not considered a live boom for purposes of the
limitations of (a) of this section. No comments were received on these
provisions; they are promulgated as proposed.
Paragraph (c) Preventing Uncontrolled Retraction
Paragraph (c) of this section requires hydraulic telescoping booms
(which are also referred to as hydraulic extensible booms) to have an
integrally mounted holding device to prevent the boom from retracting
in the event of hydraulic failure.
The C-DAC draft of this provision stated that the purpose of this
device was ``to prevent boom movement in the event of hydraulic
failure.'' OSHA determines that this language was unintentionally broad
in that it refers to any ``boom movement.'' In the proposed rule, OSHA
modified the language to state that the purpose of the integrally
mounted holding device is ``to prevent the boom from retracting'' in
the event of hydraulic failure and requested public comment on this
change.
Two commenters agreed with the modification and no commenters
disagreed. (ID-0205.1; -0213.1.) The text of Sec. 1926.1426(c) is
therefore promulgated as proposed.
Paragraph (d) Load Line Free Fall
Paragraph (d) of this section lists the circumstances under which
free fall of the load line hoist is prohibited, and controlled load
lowering must be used. ``Free fall (of the load line)'' is defined in
Sec. 1926.1401 to mean ``where only the brake is used to regulate the
descent of the load line (the drive mechanism is not used to drive the
load down faster or retard its lowering).'' ``Free fall'' is contrasted
with ``controlled load lowering,'' which Sec. 1926.1401 defines as
``lowering a load by means of a mechanical hoist drum device that
allows a hoisted load to be lowered with maximum control using the gear
train or hydraulic components of the hoist mechanism. Controlled load
lowering requires the use of the hoist drive motor, rather than the
load hoist brake, to lower the load.''
As with free fall of the boom, free fall of the load line hoist
presents a struck-by hazard to employees. One difference is that free
fall of the load line endangers a smaller area than boom free fall.
When a boom free falls, its tip (and any attached load) moves both
downward and outward. Because the load will be moving in at least two
directions simultaneously, the area that will be affected by the fall
is larger than the affected area from a load line free fall.
[[Page 48011]]
In contrast, if a load line free falls, the load will tend to fall
in a relatively straight path downward (as long as the boom is not
being moved and the load is not significantly affected by winds). Thus
the area affected will typically be smaller. As a result the
prohibitions for load line free fall are less than those affiliated
with boom free fall. No comments were received on paragraphs (d)(1) or
(d)(2); they are promulgated as proposed.
Proposed paragraph (d)(3) stated that the use of load line hoist
free fall is prohibited when the load is directly over a power line, or
over any part of the area extending the Table A clearance distance to
each side of the power line. OSHA requested comment on whether proposed
Sec. 1926.1426(d)(3) should be modified to also prohibit the equipment
from being positioned where the fall path of the load would breach the
Table A clearance distance. One commenter, in two comments agreed with
the change and no commenters disagreed. (ID-0052.0; -0092.1.)
Since this modification is consistent with the purpose of the
provision, OSHA has included this revised language in the final rule;
Sec. 1926.1426(d)(3) to prohibit load line free fall where the power
line or the Table A clearance distance is within the fall path of the
load.
Proposed paragraph (d)(4) stated that load line free fall is
prohibited when the load is over a shaft or cofferdam. OSHA noted that,
unlike the prohibition against live booms in Sec. 1926.1426(a)(1)(v),
proposed paragraph (d)(4) contained no exception regarding cofferdams
in which there are no employees in the fall zone. OSHA requested
comment on whether proposed Sec. 1926.1426(d)(4) should include the
same exception included in Sec. 1926.1426(a)(1)(v). Two commenters
agreed with the modification and no commenters disagreed. (ID-0205; -
0213.) Because the fall zone of a free falling load line is typically a
smaller area than the fall zone of a free falling boom, the Agency is
unaware of any reason to include the exception in Sec.
1926.1426(a)(1)(v) for live booms but omit it for load free fall.
Therefore, in the final rule, OSHA has modified the language in
proposed Sec. 1926.1426(d) by separately addressing shafts and
cofferdams, and adding an exception for the latter.
Section 1926.1427 Operator Qualification and Certification Introduction
Section 1926.1427 addresses the safety problems that result if
equipment operators lack the knowledge and skills necessary to perform
their duties safely. In C-DAC's collective experience, operator error
plays a role in a significant percentage of fatal and other serious
crane accidents because operators are not familiar with the precautions
needed to protect against hazards such as power line contact, crane
overloading and collapse, and loss of control of the load. C-DAC
concluded that a verified testing process is essential for ensuring
that crane operators have the requisite knowledge and skills and that
requiring crane operators to successfully complete such a process would
be an effective and efficient way to reduce crane-related accidents.
In the proposed rule, OSHA noted that C-DAC's finding in this
regard was supported by a study conducted over a 34-year period (1969-
2002) by the Construction Safety Association of Ontario that showed a
substantial decrease in crane and rigging fatalities in Ontario
beginning in 1979, when mandatory training and certification
requirements for Ontario crane operators went into effect. (ID-0009.)
In the ten-year period from 1969 through 1978, before Ontario's
requirements went into effect, 85 Ontario construction workers suffered
crane and rigging fatalities, amounting to 8.5 per year, or 19.8% of
all construction fatalities in Ontario. In the 24-year period from 1979
through 2002, there were 51 crane and rigging fatalities, or slightly
more than two per year. For this period, crane and rigging fatalities
equaled 9.6% of all Ontario construction fatalities. In the 12-year
period from 1991 through 2002, the total number of crane and rigging
fatalities was 9, or fewer than one per year. During this period, crane
and rigging fatalities amounted to 4.1% of total construction
fatalities. This study supports C-DAC's conclusion that third-party
certification is an effective means of promoting safe crane
operations.\107\
---------------------------------------------------------------------------
\107\ The Ontario system requires prospective or current crane
operators (referred to in Ontario as ``hoisting engineers'') to
either successfully complete an apprenticeship program or
demonstrate sufficient previous experience before seeking
certification as a hoisting engineer. The apprenticeship program
includes in-school training in a number of topics determined by the
Ministry of Education, a practical examination administered at
Ministry-designated sites, and a written examination administered by
the Ministry. Upon passing this examination and proving completion
of the requisite work hours, an apprentice receives a certificate of
qualification as one of three types of hoisting engineer from the
Ministry. (ID-0010.)
Hoisting engineers already qualified elsewhere must also obtain
a certification from the Ministry to operate cranes in the province.
These candidates must sit for the written examination and complete
the practical skills assessment required for qualification of
apprentices, but may demonstrate sufficient previous experience
instead of completing the number of work/training hours required by
the apprenticeship program, to receive a certificate of
qualification from the Ministry in one of the three hoisting
engineer categories. (ID-0011.)
---------------------------------------------------------------------------
The rulemaking record contains additional support for C-DAC's
conclusion. A study of crane accidents in California both before and
after that State adopted a mandatory certification requirement shows a
significant drop in crane-related fatalities and injuries after the
certification requirement went into effect on May 31, 2005. (ID-
0205.1.) For the three years prior to that date, California experienced
ten fatal accidents, while in the next three years, only two fatal
accidents occurred. The number of injury cases declined from 30 to 13
over the same two periods. The California data supports that from
Ontario and demonstrates that significant safety benefits can be
expected from a requirement for third-party certification.
The rulemaking record also contains substantial evidence regarding
the need for continued application of State and local laws. As several
commenters explained, State and local licensing requirements are backed
by the police power of that government. For example, New York law
states that the operation of a crane without a valid license in New
York City is a misdemeanor punishable by fines and imprisonment. (NYC
Administrative Code Sec. Sec. 28-405.1; 28-203.1.) Moreover, states
have the power to revoke previously issued licenses under appropriate
circumstances. (ID-0171.1.) In contrast, OSHA's enforcement of
certification or other qualification requirements would be limited in
most cases to a citation to an employer. Based on the record as a
whole, the Agency concludes that cooperative Federal-State enforcement
will increase the effectiveness of the new standard. See also
discussion of federalism in section V.D of this preamble.
The certification requirements in the final rule are therefore
designed to work in conjunction with State and local laws, and to
afford employers several options for ensuring operator abilities in
areas where there are no State or local operator licensing
requirements. For operation of equipment within jurisdictions where a
State or locality licenses crane operators, and the government entity's
licensing program meets certain criteria, OSHA is requiring operators
(with the exception of operators that are employees of and operating
equipment for the U.S. military) to be licensed by that government
entity. For operation in other areas, employers will have three
[[Page 48012]]
options for certification or qualification of their operators. Each of
these options will be explained and discussed in detail below. They
are:
1. Be certified by passing an examination administered by an
accredited testing organization.
2. Be qualified through the employer's in-house, but independently
audited, testing program.
3. Be qualified by the United States military.
While OSHA is requiring compliance with State and local licensing
laws immediately upon the effective date of this standard in
recognition of the existing force and effect of those laws, OSHA is not
requiring certification or qualification under the three options listed
above until four years from the effective date of this standard.
Moreover, there are limited exceptions to all of the licensing and
certification requirements, as specified in Sec. 1926.1427(a). Even
after the four-year phase-in period of the general certification
requirements, OSHA will continue to allow non-certified operators to
operate the equipment as operators-in-training in accordance with Sec.
1926.1427(f), discussed below.
Of the three options available in the absence of State or local
licensing laws, Option (3) of this section is available only to the
United States military for qualification of its employees. Further, as
discussed below, a number of commenters stated that Option (2) of this
section was not viable for many employers. However, Option (1) of this
section is available to all employers and will be the one that is most
widely used. Therefore, most of the public comments and evidence
presented at the hearing addressed Option (1).
At the hearing, a witness for an accredited testing organization
testified that the certification process embodied in Option (1)
originated in the 1990s when private industry groups began an effort to
improve crane safety. The witness explained that the industry
representatives involved with the organization are drawn from such
groups as contractors, crane rental firms, labor unions, owners, steel
erectors, manufacturers, construction firms, training consultants, and
insurance companies. (ID-0343.) The witness also explained that exam
management committees meet throughout the year to ensure the continuing
fairness and integrity of the testing process. Finally, the witness
explained that certification promotes safety by ensuring that the
training an individual has received has succeeded in giving that
individual the knowledge and skills to operate a crane safely. (ID-
0343.)
Many commenters and witnesses at the public hearing expressed
support for the proposed rule's approach of requiring third party
verification of an operator's qualifications and for the range of
options presented. A national safety organization expressed support for
the provision to ensure qualification and certification of operators.
(ID-0178.1.) A trade association stated that third party oversight was
critical to create an effective and legitimate testing process and to
ensure that the training portion did not have undue influence on the
testing process. (ID-0205.1.)
Similarly, another commenter supported the proposed Q/C
requirements, emphasizing the importance of independent certification
of an operator's skill and knowledge by an accredited nationally
recognized third-party entity or organization. (ID-0169.1.) Similar
views were expressed by other commenters. (ID-0158.1; -0160.1; -0173.1;
-0192.1; -0196.0; -0211.1; -0212.1; -0220.1; -0225.1; -0228.1; -
0241.1.)
A number of witnesses at the public hearing also supported the
proposed requirement for third-party verification. A representative
from a crane rental company said that, although they incur additional
cost to prove certification, they consider that cost an investment in
the safety of their employees. (ID-0344.) A major crane user observed
both certified and non-certified operators and found that the certified
operators operated far more safely because of the more comprehensive
training required to become certified. (ID-0344.)
An insurance company representative and former crane operator
stated that his company believes that employers who certify their
operators have fewer accidents and that, as a result, his firm offers
companies it insures a ten percent discount if they have their
operators certified. (ID-0343.) The representative believed that the
cost of certification was modest when compared to the cost of
accidents. (ID-0343.) A representative from a crane rental company
testified that preparing for the certification process allowed his
company to improve their operators' knowledge and ability to operate
cranes safely. (ID-0343.) A representative from a steel erection
company agreed that certification is important to both insurance
companies and employers because certification gives employers peace of
mind and reduces insurance costs. (ID-0344.)
Some commenters and witnesses opposed the proposed rule's
requirement for qualification or certification of operators. A trade
association commented that the requirements would not improve safety
more than having trained, qualified operators because many of the
operators in recent accidents were certified. (ID-0151.1.) The
commenter also questioned whether sufficient analysis had been done to
show that the proposed requirements would improve the safety of crane
operations. This commenter believed that the current requirement (Sec.
1926.20(b)(4)) for equipment operators to be qualified by training or
experience was sufficient. A witness from a similar trade association
expressed a similar view, stating that training, not certification, is
the answer to safe crane operations. (ID-0343.)
A representative of the building industry thought the requirements
were too restrictive and stated that OSHA failed to show that the
limited requirements would substantially reduces the risk of accidents
while other alternatives would not. (ID-0232.1.) The commenter asked
that its members have the option to self-evaluate their operators after
they have gone through a specified training program in lieu of the
third-party certification that would be required under proposed Option
(1) of this section for cranes of less than 35 ton capacity with a boom
length no greater than 120 feet. A witness who appeared on behalf of
the commenter criticized the proposal for imposing the same
requirements on employers engaged in residential construction as those
in commercial construction and said training and certification
requirements should be crane and industry specific. (ID-0341.)
Another trade association similarly recommended that its members be
given the ability to self-certify their operators. (ID-0218.1.) A small
business representative asked OSHA to assess whether it is feasible to
allow small employers to ``self-certify'' that an operator is trained
and competent to operate the equipment and perform the tasks being
conducted.\108\ (ID-0147.1.) A trade association suggested that OSHA
consider the feasibility of allowing small employers to ``self-
certify'' that their operators are trained and competent to operate the
equipment and perform their assigned tasks. (ID-0187.1.) Another trade
association believed that mandatory self-certification was a feasible
option for operators of what it characterized as ``light-duty'' cranes
used by its members. (ID-0189.1.)
---------------------------------------------------------------------------
\108\ The commenter, however, also acknowledged that there are
small businesses that are in favor of third-party certification.
(ID-0147.1.)
---------------------------------------------------------------------------
An energy association argued that firms engaged in wind turbine
[[Page 48013]]
construction should be permitted to self-certify their crane
operators.- (ID-0329.1.) The commenter stated that construction of wind
turbines requires the use of the largest and most complex cranes
available, and that some of its members had found that some operators
certified by NCCCO were not truly qualified to operate those cranes. It
therefore believed that firms in its industry should be able to self-
qualify their crane operators, but objected to the need for employers
in its industry who use Option (2) of this section to be required to
use the services of an auditor. The commenter said it did not believe
that there would be properly trained and qualified people available to
audit the wind industry. Instead of requiring auditors, the commenter
suggested that OSHA add to the find rule additional, detailed criteria
that an employer-sponsored program must contain to be acceptable.
OSHA rejects the suggestions of the commenters who argued that
employers should have the option of determining that their operators
are qualified without any form of third-party verification. Based on
the rulemaking record, OSHA is persuaded that the third-party
requirements in the proposed rule are an essential element in improving
crane safety. The members of C-DAC, who had vast collective experience
in all aspects of crane operations, reached a consensus (with two
members dissenting) \109\ that third-party verification was needed to
reduce the number of crane accidents and fatalities in the construction
industry. Their consensus was supported by a number of commenters,
including some employers who have already had their operators certified
through a third-party process and have found certification to be a
useful and cost-effective means of promoting safety.\110\ The reliance
of the insurance industry on third-party verification as such an
indicator of reduced risk that it warrants reduced premiums, is further
evidence of its value. Moreover, the fact that safety-conscious members
of private industry voluntarily helped to develop a third-party
certification process before there was a government mandate to do so is
further evidence that certification promotes safety.
---------------------------------------------------------------------------
\109\ As explained in the Introduction, under C-DAC ground
rules, a ``consensus'' was reached on an issue if there were no more
than two non-Federal dissenters.
\110\ It is also supported by the data from Ontario and
California showing that third-party certification can significantly
reduce crane-related fatalities and injuries, discussed below.
---------------------------------------------------------------------------
As discussed earlier, a number of commenters urged OSHA to require
training rather than certification. But training alone is insufficient
without a means of verifying that each operator understands the
training well enough to operate safely and is sufficiently skilled to
implement what he/she has been taught. As Graham Brent, Executive
Director of NCCCO put it at the hearing, ``[c]ertification * * * is an
employer's, as well as the general public's, best assurance that the
required training has not only been effective, but that learning has
taken place during the training process.'' (ID-0343.) OSHA's current
training standard has not prevented the high number of crane-related
fatalities and serious injuries that have been occurring as a result of
improper operation.
OSHA acknowledges that many employers have effective training
programs and highly competent crane operators. However, the rulemaking
record shows that a training requirement alone is insufficient to
ensure that crane operators have the requisite level of competence.
This was the opinion of the members of C-DAC and is shared by many of
the members of the public who commented on the proposed rule and who
testified at the public hearing.
A representative of the building industry objects to OSHA's
reliance on the study by the Construction Safety Association of
Ontario, saying that it does not meet statutory and regulatory
information quality standards, including the Department of Labor's
Information Quality Guidelines.\111\ (ID-0232.1.) First, OSHA notes
that the Ontario study is only part of the record evidence on which the
Agency relies in promulgating this standard. In the preamble to the
proposed rule, OSHA stated that the Ontario study ``buttressed'' C-
DAC's experience and conclusions regarding the need for independent
testing of operator ability (see 73 FR 59810, Oct. 9, 2008). Second,
OSHA's reliance on that study does comply with the Department's
guidelines. Appendix II of the guidelines addresses the information
quality principles on which OSHA relies in setting health and safety
standards. For safety standards, such as this rule, OSHA must use ``the
best available statistical data from surveys of fatalities, injuries,
and illnesses, and the best available peer-reviewed science and
supporting studies that describe the nature of the safety risks being
addressed.'' OSHA determines that the Ontario study, though not peer-
reviewed, is the ``best available statistical data'' showing the
efficacy of third-party operator certification. The California study is
similarly supportive of the C-DAC conclusions.
---------------------------------------------------------------------------
\111\ ``Guidelines for Ensuring and Maximizing the Quality,
Objectivity, Utility, and Integrity of Information Disseminated by
the Department of Labor,'' (Oct. 1, 2002), available on the
Department of Labor's Web site.
---------------------------------------------------------------------------
In other respects as well, OSHA has complied with the Department of
Labor's Information Quality Guidelines. The guidelines state that
``[t]he goal of a safety risk analysis is to describe the numbers,
rates, and causal nature of injuries related to the safety risks being
addressed.'' To meet this goal, OSHA historically has ``relied on
injury and illness statistics from BLS, combined with incident or
accident reports from enforcement activities, incident or accident
reports submitted to the record from the private or public sectors,
testimony of experts who have experience dealing with the safety risks
being addressed, and information and data supplied by organizations
that develop consensus safety standards.''
In developing the proposed rule, and in issuing this final rule,
OSHA has relied on these types of evidence, including studies based on
BLS statistics and OSHA enforcement reports, as well as incident
reports from specific enforcement cases. (See 73 FR 59719-59723, Oct.
9, 2008.) On the specific question of the need for third-party
verification of a crane operator's qualifications, OSHA has relied
primarily on the opinions of experts with vast experience in crane
operations and the hazards presented by crane use, including the
members of C-DAC and construction industry employers who appeared at
the public hearing. OSHA is persuaded that third-party verification
will significantly reduce the number of crane-related injuries and is
confident that the information on which it relies to set this standard
is reliable, the best available, and meets the Department's guidelines.
A trade association also questioned OSHA's reliance on the Ontario
study, suggesting that Ontario's ability to issue citations to
employees is the likely cause of Ontario's decrease in fatal crane
accidents. (ID-0151.1.) OSHA notes, however, that the Construction
Safety Association of Ontario attributed the decrease to increased
operator skill, not employee citations. (ID-0009.) OSHA determines that
the Construction Safety Association of Ontario was well-positioned to
evaluate why Ontario was able to achieve a dramatic reduction in crane-
related fatalities and accepts its opinion on the question. Moreover,
the employee citations permitted under Section 66 of Ontario's
Occupational Health and Safety Act did not take effect until 1990.
These employee citations
[[Page 48014]]
appear to function primarily as a deterrent to non-compliance with
Ontario's construction safety standards, as opposed to the operator
certification requirements that are intended to verify knowledge and
skills necessary for safe operation. In that regard, the civil fine
provisions are similar to the licensing requirements (separate from
certification) that Ontario had required prior to 1979. There is no
indication in the record that the fines provided a greater level of
deterrence than the government's pre-existing authority to sanction an
individual operator through the revocation of an operator's license.
The representative of the building industry claimed that the rate
of accidents resulting from crane use in the residential construction
industry is too low to justify requiring homebuilders to comply with
the qualification/certification requirement in the proposed rule. The
commenter conducted a study, using fatality data from the Bureau of
Labor Statistics, which, according to the commenter, showed that 13 out
of 1385, or slightly less than 1%, of fatalities in the residential
construction industry from 2003-2006 were crane-related. (ID-0232.1.)
Because this percentage is substantially less than the more than 8% of
all construction fatalities that were found to be crane-related in the
Beavers study, the commenter suggests the risk of serious injury from
the smaller truck mounted telescopic boom cranes used in residential
construction is substantially less than the risk of injury from large
lattice boom and tower cranes used in commercial/industrial
construction. The commenter stated that a copy of its study was
attached to its comment and is available on its Web site. (ID-0232.1.)
In fact, a copy was not attached to its comment. OSHA has located a
document on the commenter's Web site entitled ``Residential
Construction Fatalities, 2003-2006'' that describes the causes of
fatalities in residential construction, but has found nothing in that
document to support the commenter's claim that only 13 of those
fatalities were crane-related.
Nevertheless, even if the commenter could support its claim of 13
crane-related fatalities, its conclusion that cranes present little
risk of serious injury in residential construction does not follow.
First, OSHA determines that 13 crane-related fatalities in homebuilding
in a four year period is significant and well worth trying to reduce.
Moreover, the commenter's comparison of percentages is not persuasive.
The fact that a smaller percentage of fatalities are crane-related in
residential construction than in commercial/industrial construction may
simply reflect lower crane usage in residential construction. A witness
who appeared on behalf of the commenter at the public hearing,
testified that cranes are typically used on a residential construction
project between two and six hours to lift objects like roof and floor
trusses. (ID-0341.) The witness noted that for commercial construction,
a crane might be on the job from six months to two years. (ID-0341.) In
light of the brief percentage of time cranes are used in residential
construction compared to the percentage of time they are used in
commercial construction, it would be expected that the percentage of
accidents they cause will similarly be lower even if, while they are on
the job, they present the same or even a higher degree of risk.\112\
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\112\ Mr. Behlman testified that overhead power lines are ``very
seldom'' found on residential sites. (ID-0341.) However, the
document on NAHB's Web site showing the causes of residential
construction fatalities from 2003 to 2006 attributes 76 fatalities
to ``contact with overhead power lines.''
---------------------------------------------------------------------------
OSHA also rejects the commenter's suggestion that homebuilders
should be permitted to self-certify their crane operators. The
commenter states that the vast majority of the building association's
single-family home builders are very small, with 61% building ten homes
or fewer. The witness stated at the hearing that the home building
industry has many small operations and a few very large players. (ID-
0341.) In OSHA's experience, most small construction firms would not
have the expertise to develop or administer the types of tests
necessary to reliably assess operator ability (see the discussion of
the criteria applied by nationally recognized accrediting entities to
accredit certification organizations).
OSHA also does not conclude that such companies typically possess
the expertise to establish and implement the sophisticated type of
training program that the commenter suggests should be required for
employer self-certification. (ID-0232.1.) The same problem exists
throughout the construction industry, which includes numerous small
firms. Furthermore, as found by C-DAC, independent testing is essential
to ensure that operators have in fact attained the knowledge and
ability the training is supposed to impart.
A number of commenters suggested that the proposed requirements
should be modified in various ways. Some suggested exempting certain
equipment from the qualification/certification requirement or requiring
a form of qualification/certification that the employer could implement
without resort to third-party verification. Others suggested expanding
the range of options available to the employer, in particular allowing
accredited educational institutions to certify operators. These
comments will be discussed below in the sections of the standard that
address the issues raised by the commenters.
Paragraph (a)
In the final rule, paragraph (a) of this section specifies that the
employer must ensure that the operator of any equipment covered under
Sec. 1926.1400, with certain listed exceptions, is either qualified or
certified to operate the equipment in accordance with the provisions of
this section or is operating the equipment during a training period.
Paragraph (a)(1) requires compliance with State and local operator
licensing laws. For areas where State or local licensing is not
required, paragraph (a)(2) requires employers to use one of the three
options listed above to certify or qualify their operators. Paragraph
(a)(3) provides exceptions from all of Sec. 1926.1427's certification
and qualification requirements for operators of certain equipment,
regardless of whether State or local governments have licensing
requirements for operators of that equipment.\113\
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\113\ These State and local licensing requirements would remain
in effect. See discussion of preemption of State and local law under
federalism in section V.D of this preamble. OSHA is simply choosing
not to require compliance with any such licensing requirements for
that equipment.
---------------------------------------------------------------------------
Paragraph (a)(1) Compliance With State and Local Licensing Requirements
The proposed rule included a fourth option to satisfy the operator
certification/qualification requirements of Sec. 1926.1427:
qualification through a government entity with a licensing program
meeting certain criteria. Several states submitted comments on the
proposed rule urging the Agency to preserve State and local operator
licensing laws. Some of these concerns are addressed in the discussion
of preemption under federalism in section V.D of this preamble. Two of
those commenters, each with its own statewide crane operator licensing
requirements, specifically requested that OSHA mandate compliance with
State requirements for crane operations within the jurisdiction of
those states (with the exception of operators who are employees of the
U.S. military). (ID-0171.1; -0237.) Three State governments argued
persuasively that if government licensing was presented merely as an
option, rather than required, many employers would simply by-pass these
[[Page 48015]]
licensing requirements in favor of less stringent, portable private
certification options. (ID-0171.1.) One State government also noted
that some states have proven, reliable licensing procedures already in
place. Where State and local licensing departments or offices are
already well established and staffed, and are already preventing deaths
or serious injuries through the use of effective licensing procedure,
there is little support in the record for disturbing them.
In light of the commenter's compelling arguments and the policy
considerations noted above, the Agency is convinced that the
governmental licensing requirements should be mandatory, rather than
optional. In response, the Agency is revising paragraphs (a) and (e) of
Sec. 1926.1427 to mandate compliance with State and local operator
licensing laws that meet a ``Federal floor'' established in paragraphs
(e)(2) and (j) of this section.\114\
---------------------------------------------------------------------------
\114\ This ``Federal floor'' refers to the minimum requirements
for license tests in Sec. 1926.1427(e)(2), and the minimum
knowledge and skills that must be tested as set forth in Sec.
1926.1427(j)(1) and (j)(2). Employers would not be required by OSHA
to comply with State or local government entity licensing
requirements that do not meet this ``Federal floor,'' but States and
local governments could still seek to enforce their own laws.
---------------------------------------------------------------------------
This mandatory compliance is set forth in the introductory text of
Sec. 1926.1427(a)(1) and paragraph (a)(1)(i). OSHA has added Sec.
1926.1427(a)(1)(ii) to clarify that employees of the U.S. military who
have been certified or qualified to operate equipment pursuant to Sec.
1926.1427(d) would not also be required to obtain an operator's license
from a State or local government for construction work on behalf of the
military employer. By requiring compliance with State and local laws,
the Agency is also complying with Executive Order 13132, which urges
agencies to preserve the full force and effect to State and local laws.
(See 64 FR 43225, Aug. 10, 1999.)
This decision is a logical outgrowth of the proposal. The proposal
identified a significant safety risk from improper operation of
equipment and proposed certification requirements as a means of
addressing that risk. Governmental licensing of crane operators has
existed alongside OSHA's prior crane rules at former Sec. 1926.550 for
many years, and C-DAC made them a significant component of the proposal
without any indication that the new standard would exempt employers
from compliance with those laws. The government licensing provision was
the subject of a number of comments, and was discussed during the
hearing in the context of comments requesting OSHA to make the
government licensing mandatory.
The preamble to the proposed rule noted C-DAC's opinion that some
States have ``effective, reliable, licensing procedures'' (73 FR 59814,
Oct. 9, 2008). The preamble to the proposed rule also specifically
cited the Department of Transportation's requirement that commercial
drivers also carry State drivers licenses issued in accordance with
Federal standards (73 FR 59810). The DOT licensing was provided as an
example of how State licensing, when required as part of a general
Federal compliance scheme, has been ``used in the past to prevent fatal
and other serious accidents that result when operators lack the
knowledge and skills needed to operate safely.'' Id. The only other
example of successful third-party certification provided as a basis for
the certification requirement was another government licensing
requirement: Ontario's licensing requirements for crane operators. Id.
The combination of OSHA's exclusive reliance on these examples and the
government licensing provision in proposed Sec. 1926.1427(e) provided
clear notice that the government licensing provision might develop
along the lines of the examples. While several commenters submitted
comments supporting mandatory compliance with government licenses,
thereby indicating that at least these parties viewed the mandatory
compliance as a possible outcome of the rulemaking, none of the
commenters objected to the government licensing provision or questioned
the validity of their tests. The Agency's choice to make compliance
with paragraph (e) mandatory, rather than optional, flows logically
from the proposal, the comments, and the discussion at hearing. See
National Mining Ass'n v. Mine Safety and Health Admin., 512 F.3d 696,
699 (DC Cir. 2008) (noting that the logical outgrowth test takes into
account the comments, statements and proposals made during the notice-
and-comment period).
The Agency's decision to mandate compliance with State and local
laws is not new. OSHA already relies on State licensing requirements in
its respirator standard when it provided for ``a licensed health care
professional'' to perform a medical evaluation of an employee's ability
to use a respiratory (see Sec. 1910.134(e)). This portion of the
standard was challenged and upheld in American Iron Steel and Steel
Institute v. OSHA, 182 F.3d 1261, 1278 (11th Cir. 1999). OSHA's choice
to mandate compliance with State or local law is also consistent with
the approach of other agencies. (See, e.g., Department of
Transportation regulations requiring State licensing of commercial
drivers, discussed in the preamble to the proposed rule at 73 FR 59810,
Oct. 9, 2008.)
Paragraph (a)(2) Options for Certification or Qualification Where
License Not Required by a Government Entity
As noted above, where a State or local license is not required,
employers have three choices for certification of operators. Those
choices are set out in paragraphs (b) through (d) of this section and
discussed in detail below. It is important to note that these options
will not satisfy the requirements of Sec. 1926.1427 for operation of
equipment within a State or local government's jurisdiction when that
government entity has it's own licensing requirements that satisfy the
criteria in paragraphs (e) and (j) of this section.
Paragraph (a)(3) Exceptions
The exceptions in the proposed rule were for types of equipment
that are specifically excluded from the qualification/certification
requirement under sections of this standard that pertain to that
equipment, including derricks (see Sec. 1926.1436), sideboom cranes
(see Sec. 1926.1440), and equipment with a rated hoisting/lifting
capacity of 2,000 pounds or less (see Sec. 1926.1441).
A labor representative pointed out that the exception in Sec.
1926.1441 applies to equipment with a ``maximum manufacturer-rated''
hoisting/lifting capacity of 2,000 pounds or less, and it asked that
this same language be used in Sec. 1926.1427(a) to avoid suggesting
that the exception might apply to larger equipment when it is
configured to have a rated capacity of 2,000 pounds or less. (ID-0341.)
OSHA agrees that the suggested change better reflects the intent of the
provision and has modified the language of Sec. 1926.1427(a) in the
final rule by replacing the word ``rated'' with ``maximum rated.'' OSHA
notes that this change does not change the substantive requirements of
the rule in any manner.
A number of commenters asked that additional types of equipment or
activities be exempted from Sec. 1926.1427's qualification/
certification requirement.
A utility company recommended that cranes of 10,000 pound capacity
or less be excluded on the basis that most uses of these cranes are
highly repetitive and predictable. (ID-0144.1.) A trade association
suggested exempting cranes rated at less than 10 or 15 tons from the
[[Page 48016]]
requirement. (ID-0191.1.) It said that these types of cranes are often
used to deliver products to a jobsite or to place small rooftop HVAC
units on low rise buildings, and that they are used for simple lifts of
relatively light loads. This commenter also requested that OSHA add a
less restrictive certification level for cranes rated less than 30
tons, which it said are less complicated to assemble and set up and are
used during ``low risk'' lifts.
Another trade association suggested that the threshold for
requiring qualification/certification should exclude the 5,000 to
10,000 pound capacity cranes that its members typically use. (ID-
0189.1.) It said that this equipment is relatively simple to operate,
that the signs its members install rarely exceed 2,000 pounds, and that
the equipment is used intermittently on the job and only for brief
periods of time.
A third trade association believes that the size and scope of the
lifts its members make do not justify the qualification/certification
requirements in the proposed rule and suggested alternative
requirements for its members when they operate cranes of less than 35
ton capacity with a boom length no greater than 120 feet. (ID-0218.1.)
They ask that their members have the option to self-evaluate their
operators after they have gone through a specified training program
instead of the third-party certification that would be required under
proposed Option (1). A representative of the building industry made a
similar recommendation for cranes of less than 35 ton capacity with a
boom length no greater than 120 feet. (ID-0232.1.) A small business
representative suggested that OSHA consider exempting some small cranes
(based on vehicle weight or boom length) or routine lifts. (ID-0147.1.)
A witness for a labor representative testified in opposition to
excluding equipment rated over 2,000 pounds by the manufacturer. He
stated that some low-capacity cranes have long booms and are used to
lift loads to great heights, particularly when there is not sufficient
space for a larger crane. (ID-0341.) According to the witness, safety
concerns presented by low capacity cranes with a long boom are as
serious as the concerns presented by high capacity cranes. (ID-0341.)
He added that the danger of power line contact was present regardless
of the capacity of the crane.
A representative from a crane rental company also testified against
exempting low-capacity cranes from the qualification/certification
requirement. His company had a fleet of cranes ranging from 4 to 600
ton capacity, and in his experience the majority of accidents that his
customers experienced when they rented cranes but provided their own
operators occurred with cranes rated 35 tons or less. (ID-0344.) He was
aware of accidents on residential construction sites that resulted from
operating on unsuitable ground, not setting the outriggers properly,
and lifting too heavy a load for the crane's configuration,
deficiencies that he attributed to operators who did not appreciate the
hazards involved. (ID-0344.)
OSHA has carefully considered the comments asking for additional
types of equipment to be exempted from the qualification/certification
requirements of Sec. 1926.1427. For the following reasons, OSHA
declines to add such exemptions to the final rule.
The members of C-DAC, who had vast collective experience in all
aspects of crane operations, reached a consensus that third-party
verification was needed to reduce the number of crane accidents and
fatalities in the construction industry. They further determined that
such a requirement should apply to virtually all hoisting equipment,
with only the limited exceptions listed in the proposed rule. In
proposing to exempt equipment with a rated capacity of 2,000 pounds or
less, the Committee considered whether to establish a higher threshold
for the requirement but concluded that the operators of higher-capacity
cranes, including those in the 5,000-35,000 pound range that the
commenters ask to be exempted, needed to be well-qualified to reduce
the number of accidents involving such cranes. Ultimately, C-DAC
included the 2,000 pound cutoff to parallel ANSI B30.5 in this regard
(see 73 FR 59841, Oct. 9, 2008).
The rulemaking record shows that many of the same hazards presented
by larger cranes are present for cranes in this capacity range,
including operating in proximity to power lines, the potential for
collapse if the crane is overloaded, and the need for adequate ground
conditions to ensure the crane's stability during operation. As a labor
representative testified, these smaller cranes may be used in tight
spaces where larger cranes cannot be used. An operator's loss of
control of the load in a tight space would present a serious safety
hazard, and the potential for operating in tight spaces highlights the
need for operators of even relatively low-capacity cranes to be highly
skilled.
OSHA also rejects the suggestions by some commenters that
exemptions should be created for cranes that are typically used for
repetitive, predictable, intermittent, or light use.
The principal difficulty with this suggestion is that the
underlying causes of crane-related fatalities and injuries are not
necessarily diminished in such situations. For example, the presence of
power lines presents an electrocution hazard in all situations,
irrespective of how the equipment is used. Proper ground conditions,
which can change during crane use, are also as necessary for those
types of uses as others, and all cranes can be overloaded if operated
improperly. The knowledge and skill needed for attaining operator
qualification/certification under this section is a prerequisite for
being able to successfully address these and other hazards.
Furthermore, while an employer may initially plan to use a crane in
a repetitive or otherwise predictable manner, or to handle light loads,
unforeseen circumstances can arise that can alter those plans. Wind,
which can arise unexpectedly during a lift, can dramatically decrease
the capacity of a crane and increase the difficulty in properly
handling the load; a previously ``repetitive'' lift can change
unexpectedly when rain causes the ground supporting the crane to become
muddy and less able to support the crane; a rigging problem may arise
during one of the ``repetitive'' lifts, which could cause unexpected
load control problems during the lift; and hoisting a ``light'' load at
a low boom angle can pose similar overturning hazards to hoisting a
heavy load at a high boom angle. Nor are there fewer crane-related
hazards when a worker operates a crane only intermittently. For
example, that operator on one of those occasions may have to run the
crane near power lines, in the blind, with uneven winds, or at a low
boom angle; in such cases (as in many others) he/she needs to be as
fully capable as an operator who runs the crane regularly.
Paragraph (a)(4)
The Agency is adding this paragraph to the final rule to clarify
that operator certification or qualification as required under this
section must be provided at no cost to employees who are already
employed by the employer on November 8, 2010. This clarification is
consistent with the Agency's revision of the training requirements
throughout subpart CC to expressly state that employers must provide
all training at no cost to employees. The clarification is consistent
with the Agency's treatment of costs for operator qualification and
certification in the
[[Page 48017]]
preliminary economic analysis provided in the preamble of the proposed
rule. (See, e.g., 73 FR 59895, Oct. 9, 2008 (operator certification
training treated as cost to employer).)
Based on the testimony of several witnesses at the hearing, OSHA
concludes that imposing the operator qualification and certification
costs on the employer will not be overly burdensome to the employer. At
the hearing, a representative from a crane rental company said that,
although his company incurs additional cost to provide certification,
his company considers that cost an investment in the safety of their
employees. (ID-0344.) An insurance company representative and former
crane operator stated that the cost of certification was modest when
compared to the cost of accidents. (ID-0343.) This witness also stated
that his company believes that employers who certify their operators
have fewer accidents and that, as a result, his firm offers companies
it insures a ten percent discount if they have their operators
certified. (ID-0343.) A representative from a steel erection company
agreed that certification is important to both insurance companies and
employers because certification gives employers peace of mind and
reduces insurance costs. (ID-0344.)
In light of the need for clarification and witness support at the
hearing, OSHA is adding new paragraph (a)(4) to this section of the
final rule.
Paragraph (b) Option (1): Certification by an Accredited Crane Operator
Testing Organization
As noted above, the proposed rule provided four options for a crane
operator to be qualified or certified. Option (1) of this section, in
which the employee becomes certified to operate equipment of a certain
type and capacity by passing an examination administered by an
accredited testing organization, is the most broadly available option,
and OSHA expects it to be the one that most employers use outside of
jurisdictions with State or local licensing requirements.
Under Option (1), a crane operator becomes certified by a testing
organization that has itself been accredited by a ``nationally
recognized accrediting agency.'' Section 1926.1401 defines ``nationally
recognized accrediting agency'' as ``an organization that, due to its
independence and expertise, is widely recognized as competent to
accredit testing organizations.'' The use of a nationally recognized
accrediting agency to provide an independent, authoritative assurance
of a testing organization's competence is a well-established practice.
For example, for a number of years, the National Commission for
Certifying Agencies (NCCA), the accreditation body of the National
Organization for Competency Assurance (NOCA), has accredited testing
organizations in a wide variety of fields, including those that provide
crane operator certification. (ID-0021.) Also, in 2003, the American
National Standards Institute began accrediting personnel certification
entities. (ID-0022.)
Under Sec. 1926.1427(b)(1)(i), for a testing organization to
become accredited, the accrediting agency must determine that the
testing organization's written testing materials, practical
examinations, test administration, grading, facilities/equipment and
personnel meet industry recognized criteria. The accrediting agency
must determine that the written testing materials and practical
examinations are well designed and sufficiently comprehensive that an
individual who achieves a passing grade has demonstrated the skills and
knowledge needed to operate the equipment safely. The accrediting
agency must also determine that the testing organization's
administration and grading ensure the integrity of the test so that the
individual's grade truly represents the knowledge and skill level of
that individual.
A safety association believed that the criteria for accrediting
agencies in proposed Sec. 1926.1427(b)(1)(i) were not sufficiently
rigorous and suggested replacing that paragraph with a paragraph that
required the nationally recognized accrediting agency to use
certification criteria equal to or greater than that of the National
Commission of Certifying Agencies (NCCA), the Council of Engineering
and Scientific Specialty Boards (CESB), or ANSI/ISO/IEC 17024, General
Requirements for Bodies Operating Certification Systems of Persons.
(ID-0178.1.) This commenter expressed concern that, without this more
specific level of rigor, entities with little experience in
professional certification will be able to establish accrediting bodies
for certifications that do not adequately demonstrate professional
crane operator competence.
An operator certification organization stated that NCCA and ANSI
are nationally recognized accrediting agencies and that others should
only be designated as such by OSHA after a comprehensive review of its
accrediting protocols. (ID-0382.1.) It suggested changing the
definition of ``nationally recognized accrediting agency'' in Sec.
1926.1401 to specify that the only accrediting agencies are ANSI, NCCA,
and any other organization designated by OSHA as competent to accredit
testing organizations.
These commenters are concerned that an organization that applies
insufficiently stringent accrediting criteria might claim to be a
``nationally recognized accrediting agency'' and accredit testing
organizations that are less competent than those accredited by NCCA and
ANSI.
OSHA determines that the commenters are correct in suggesting that
some additional specificity is needed in the definition to ensure that
only entities using sufficiently stringent accrediting criteria are
included. In the preamble to the proposed rule, OSHA identified two
organizations that it determined were examples of a ``nationally
recognized accrediting agency''--the National Commission for Certifying
Agencies (NCCA) and the American National Standards Institute (ANSI)
(see 73 FR 59811, Oct. 9, 2008). No commenters have suggested that
these are inappropriate examples of this term. Therefore, to provide
greater specificity, OSHA has modified the language used in the
proposed rule's definition to include references to NCCA and ANSI as
examples of organizations that meet the final rule definition in Sec.
1926.1401.
Section 1926.1427(b)(1)(ii)(A) specifies that the written and
practical tests administered by the testing organization must, at a
minimum, assess the knowledge and skills listed in Sec. Sec.
1926.1427(j)(1) and (2). Those subjects are discussed below under Sec.
1926.1427(j).
Paragraph (b)(1)(ii)(B) provides that the testing organization must
provide different levels of certification based on equipment capacity
and type. This requirement is designed to ensure that a certified
operator has the knowledge and skill needed to safely operate equipment
of the type and capacity the employee will actually be operating while
avoiding the need for employees to know how to operate more complex
equipment.
In the proposed rule, OSHA gave examples of what this provision
means in practice. It stated, as one example, an employee who only
operates a hydraulic truck crane would not need to also have the
additional knowledge and skills necessary to operate a lattice boom
crawler crane. As another, it said that an employee who operates only a
22 ton capacity hydraulic truck crane would not need to also have the
additional knowledge and skills necessary to operate a 300 ton
hydraulic truck crane. The Agency further stated that
[[Page 48018]]
certification on a more complex type of equipment would typically
qualify an operator to operate lower-capacity equipment of the same
type, e.g., certification on a 300 ton hydraulic crane would qualify an
operator to operate a 22 ton hydraulic crane.
None of the commenters opposed allowing operators certified to
operate at a given capacity from also operating lower-capacity
equipment of the same type. Two commenters recommended that ``type,''
for purposes of paragraph (b)(1)(ii)(B), be defined for mobile cranes
as they are defined in ASME B30.5. (ID-0205.1; -0213.1.) These
commenters also stated that ``qualifications (and certification) should
be driven by the knowledge and skill required to operate a piece of
equipment. When a body of knowledge or a particular skill set for a
particular `type' of crane changes, then so should the appropriate
category of certification/qualification.''
The Agency concludes that a descriptive definition of ``type'' that
addresses the point raised by these commenters would better accomplish
the purpose of the term than tying it to specific examples of existing
technology. Therefore, OSHA has added a definition of the word ``type''
to Sec. 1926.1401 of the final rule.
Examples of many of the various types of cranes currently in use
are described in the ANSI B30 series (see, for example, ASME B30.5-2004
for mobile cranes and ASME B30.3-2004 for construction tower cranes).
For example, in this context, truck-mounted telescoping boom cranes,
truck-mounted non-telescoping boom cranes, and crawler cranes are three
different ``types,'' since the specific bodies of knowledge and skills
needed for the safe operation of each category is different (although
they are not completely distinct--the knowledge and skill sets overlap
to some degree).
Commenters and witnesses from the railroad industry believed that
certification based on ``equipment capacity and type'' did not address
unique conditions in their industry because current certification
examinations did not cover the types of cranes they use or the
circumstances under which they use them. A railroad company stated that
certification tests used by the two accredited testing organizations
require knowledge of skills that do not apply in the railroad industry.
(ID-0176.1.) A railroad association stated that railroads use cranes in
fundamentally different ways than construction companies and that
neither [currently] accredited testing organization has tests that
address the use of cranes on railroads. (ID-0170.1.) A representative
from another railroad company testified that some of the types of
cranes his railroad uses are fundamentally different from the typical
cranes used in the construction industry. Among the cranes that he said
are unique to the railroad industry are locomotive cranes and rubber-
tired cranes that can either run on the ground or travel on rails. (ID-
0342.) The representative stated that certification tests on typical
construction cranes were not suited to the types of cranes used in his
industry and asked that the rule offer the latitude for the industry to
train operators in a way that makes sense for railroads. (ID-0342.)
The comments and testimony by the railroad industry representatives
suggest the need for some flexibility in the certification requirement
to deal with specialized types of cranes or newly developed equipment
for which certification examinations might not be available. Another
aspect of this problem was raised by an energy association, which said
that the cranes used in erecting wind turbines are the largest and most
complex available, and that certification for such equipment is not
currently available. (ID-0329.1.)
C-DAC addressed one example of a type of equipment--dedicated pile
drivers--for which certification examinations were not available.
Section 1926.1439(e) of the proposed rule accommodated this problem by
providing that dedicated pile driver operators can be certified either
for operation of dedicated pile drivers or for equipment that is most
similar to dedicated pile drivers. OSHA concludes a similar approach is
appropriate for any equipment for which a certification is not
available. Accordingly, OSHA is adding Sec. 1926.1427(b)(2) to the
final rule, which allows an operator to be certified to operate a crane
if he or she is certified to operate a higher-capacity version of that
type of crane or, if no accredited certification entities offer
certification for that particular crane, if he or she is certified to
operate the type of crane most similar to the equipment in question.
In light of this change, OSHA is deleting Sec. 1926.1439(e) from
the final rule as it is no longer necessary. Paragraph (b)(2) will also
facilitate employers' compliance with the requirements of Sec.
1926.1427 by making it clear that the operator's certificate must
indicate the particular type and capacity of crane for which the
operator was certified.
As discussed in the proposed rule, during the SBREFA process,
several small entity representatives suggested that basing
certification on the type of crane might result in some capable
operators being denied certification. They described situations in
which an operator is knowledgeable and skillful with respect to one
particular model of crane but might be unable to obtain certification
based on equipment capacity and type. In response to this concern, OSHA
sought public comment on whether there should be a mechanism for an
operator to become certified on a particular model of crane.
Some commenters supported such a mechanism. (ID-0145.1; -0151.1; -
0194.1; -0214.1.) Several commenters who opposed the suggestion stated
that such certification would likely not be available from testing
organizations, that employers who use Option (2) would find it costly
and impractical to develop tests for each model of crane, and that
testing based on crane model was not appropriate because the skill set
and knowledge required for safe operation are not model-dependent. (ID-
0175.2; -0205.1; -0213.1.) Witnesses at the hearing also opposed model-
specific certification. (ID-0341; -0343.)
OSHA has concluded that expansion of the options to include
certification on a specific model of crane is not necessary. The body
of knowledge and skills required to be qualified/certified on a
particular model of crane is not less than that needed to be qualified/
certified for that model's type and capacity.
It may well be that an operator seeking certification is confident
about operating the particular model of crane he/she has been operating
but is concerned about being tested on another model of the same type
of crane. To the extent this is a concern, OSHA notes that at least one
accredited testing organization allows the practical test to be
administered at the employer's worksite using the employer's own
equipment. (ID-0343.) With this type of practical test available,
operators who feel confident that they can become certified on a
particular model can be tested on that model, and such certification
will allow them to operate any model of the same type (as long as they
also pass the written test). Therefore, certification on a specific
model would be more restrictive than is necessary, and OSHA sees no
benefit from providing for such a certification. OSHA has therefore
retained the requirement that certification is based on the ``type'' of
crane.
The SBREFA Panel also received comments from some SERs suggesting
that the standard should accommodate crane operators who were fully
capable of operating particular equipment in a
[[Page 48019]]
limited set of circumstances but who would be unable to pass
certification tests that required knowledge and abilities beyond those
circumstances. The Panel recommended that OSHA consider and solicit
public comment on expanding the levels of operator qualification/
certification to allow such operators to be certified for a specific,
limited type of circumstance defined by a set of parameters that, taken
together, would describe an operation characterized by simplicity and
relatively low risk. In response to the Panel's recommendation, OSHA
requested public comment on whether such parameters could be identified
in a way that would result in a clear, easily understood provision that
could be effectively enforced.
A number of commenters were in favor of a provision that would
allow certification in a limited set of circumstances. A labor
organization supported certification limited to the use of rail-bound
equipment used to install continuously welded rail and stick rail. (ID-
0145.1.) This commenter said that such operations involved dragging,
manipulating, and positioning rather than hoisting. Other commenters
also supported such a limited certification provision but did not
provide specific information about how to define those operations or
what aspects of the operations made them less risky than other crane
operations. (ID-0151.1; -0176.1; -0191.1; -0214.1.) Other commenters
opposed this type of ``restricted'' certification. (ID-0175.2; -0205.1;
-0213.1.) They said that the degree of risk in a given situation was
difficult to assess and could change due to unforeseen circumstances
arising on the job.
OSHA agrees with the commenters who opposed allowing a limited form
of certification based on perceived risk levels. As explained earlier
in the discussion of this section, the Agency found the argument that
certification should not be required to operate cranes that are
typically used for repetitive, predictable, intermittent, or light use
to be unpersuasive. OSHA did so because such uses are likely to involve
many if not all of the same hazards present in other situations.
Similar concerns apply to the concept of ``low risk'' operations.
First, even if such operations could be effectively identified, the
possibility of unforeseen events occurring during such a lift requires
that the operator have sufficient ability to handle such complications.
Second, as noted above, apart from the suggestion regarding certain
railroad operations, no commenter offered a means of setting the
parameters for defining this concept. OSHA has therefore rejected the
concept of a limited, ``low risk'' qualification/certification.
A labor organization recommended that OSHA require that applicants
for certification testing provide documentation that they have at least
1,000 hours of crane related on-the-job experience or training. (ID-
0341.) Such experience was necessary, in this commenter's view, because
neither the written nor practical exams tested an operator's ability to
handle unusual worksite conditions, such as adverse weather or working
on crowded jobsites, and did not test an operator's judgment.
As explained above, OSHA has included the qualification/
certification requirement to serve as a mechanism to help ensure that
operators have attained the level of knowledge and skill necessary to
safely operate the equipment. The record amply demonstrates the
sufficiency of the accreditation process that must be passed for a
testing organization to become accredited. That process is designed to
ensure that accredited testing organizations use a sufficiently
reliable process for certifying operators. The record also shows that
such a mechanism is an effective one for determining operator
competence (the record includes the support of the commenter and its C-
DAC nominee for that mechanism).\115\
---------------------------------------------------------------------------
\115\ OSHA also notes that the this commenter is, in this
regard, taking a position that is inconsistent with the one taken by
its C-DAC nominee, who had agreed to the C-DAC version of Sec.
1926.1427, which had no experience/training prerequisite. Nor has
this commenter explained why it has changed its position from that
of its C-DAC nominee. Due to this inconsistency in position, OSHA
accords reduced weight to this commenter's suggested change.
---------------------------------------------------------------------------
There is insufficient information in the record to include an
additional requirement for 1,000 hours of ``crane related experience or
training.'' The commenter does not specify what should be included in
``crane related experience,'' or why 1,000 hours would be the
appropriate amount of such experience for this purpose. The commenter
also does not specify if meeting the 1,000 hour prerequisite by
``training'' should mean hands-on (criteria for such training is
delineated in Sec. 1926.1427(f)) or classroom type training. OSHA
notes that the other commenters supporting this section have not
recommended adding an experience or training prerequisite. The Agency
has therefore declined to accept this suggested change.\116\
---------------------------------------------------------------------------
\116\ OSHA also notes that the commenter is, in this regard,
taking a position that is inconsistent with the one taken by its C-
DAC nominee, who had agreed to the C-DAC version of Sec. 1926.1427,
which had no experience/training prerequisite. Nor has the commenter
explained why it has changed its position from that of its C-DAC
nominee. Due to this inconsistency in position, OSHA accords reduced
weight to the commenter's suggested change.
---------------------------------------------------------------------------
Section 1926.1427(b)(1)(iii) requires that the testing organization
have procedures for operators to re-apply and be re-tested in the event
an applicant fails a test. This would help ensure that if the employee
initially failed to pass the test, the employee would be able to retake
the test and still have the opportunity to obtain the certification.
Section 1926.1427(b)(1)(iii) also requires that the testing
organization have procedures for operators to re-apply and be re-tested
in the event an operator is decertified.
Section 1926.1427(b)(1)(iv) specifies that the testing organization
must have procedures for re-certifying operators designed to ensure
that the operator continues to meet the requirements of Sec.
1926.1427(j). Under Sec. 1926.1427(b)(4), a certification is valid for
five years, after which the operator must again pass a certification
examination. Section 1926.1427(b)(1)(iv) is included so that
recertification procedures appropriate for those who have already been
certified will be available.
Under Sec. 1926.1427(b)(1)(v), the testing organization's
accreditation must be renewed by the accrediting organization at least
every three years to ensure continuing quality of testing materials and
administration.
No comments were received on Sec. Sec. 1926.1427(b)(1)(iii)-(v);
those provisions are promulgated as proposed.
Under Sec. 1926.1427(b)(3) (previously designated Sec.
1926.1427(b)(2) in the proposed rule), a certification is ``portable,''
which means that a certificate issued under Option (1) would meet the
requirements of Sec. 1926.1427(a)(2) (when State or local jurisdiction
does not require operator licensing) until the certificate expires. In
the final rule, OSHA is specifying that meaning directly in Sec.
1926.1427(b)(3) rather than in a separate definition in Sec.
1926.1427(m), as proposed. C-DAC determined that certification under
this option should be portable because the testing organization is
fully independent of all employers who may employ a crane operator and
there is no reason to limit the certification to a particular employer.
OSHA agrees.
Section 1926.1427(b)(4) (previously designated Sec.
1926.1427(b)(3) in the proposed rule) provides that a certification
under this paragraph is valid for exactly five years. The exact five
year period is intended to strike the
[[Page 48020]]
appropriate balance between ensuring that certified operators are re-
evaluated regularly, while reducing the burden of recertification on
operators.
No comments were received on the text that is now in paragraphs
(b)(3) and (b)(4). As noted, the definition of ``portable'' has been
moved from proposed (m)(1) to final (b)(3).
Paragraph (c) Option (2): Qualification by an Audited Employer Program
Paragraph (c) of this section sets out Option (2), in which the
employer determines, through its own audited testing program, that its
employee is qualified to operate the equipment. This option is designed
to enable employers to meet the Sec. 1926.1427 requirements through
their own in-house testing programs. As discussed above, however, C-DAC
determined that independent, third-party involvement was needed to
ensure the reliability and integrity of any testing program. Therefore,
to ensure that testing under Option (2) of this section is accurate and
reliable, Sec. 1926.1427(c)(1) requires that the tests must be
developed by either an accredited crane operator testing organization
(as described under Option (1)), or approved by an auditor who is
certified by an accredited crane operator testing organization. In
addition, the administration of the tests must be audited.
If the employer chooses to use tests approved by an auditor, the
auditor must, under Sec. 1926.1427(c)(1)(ii)(A), be certified as a
test evaluator by an accredited testing organization. To ensure that
the auditor's evaluation is independent and impartial, Sec.
1926.1427(c)(1)(ii)(B) prohibits the auditor from being employed by the
employer seeking evaluation of its qualification program. Also, Sec.
1926.1427(c)(1)(ii)(C) requires the auditor to determine that the
program meets nationally recognized test development criteria and
adequately assesses the criteria in Sec. 1926.1427(j).
The requirements for test administration that apply under Option
(2) of this section are set forth in Sec. 1926.1427(c)(2). These
requirements apply to both tests that have been developed by an
accredited crane operator testing organization or to those that have
been approved by an auditor. Section 1926.1427(c)(2)(i) requires that
the auditor find that the procedures for administering the test meet
nationally recognized test administration standards. This provision is
designed to ensure that the test results accurately reflect the
operator's performance on the test.
Under Sec. 1926.1427(c)(2)(ii), the auditor must be certified to
evaluate the administration of the written and practical tests by an
accredited crane operator testing organization. Section
1926.1427(c)(2)(iii) prohibits the auditor from being employed by the
employer seeking the auditor's approval of its test administration
procedures.
Proposed Sec. 1926.1427(c)(2)(iv) required that the audit be
conducted in accordance with nationally recognized auditing standards.
OSHA noted that the proposed rule, as drafted by C-DAC, required only
that the administration of the tests, and not the audit of the tests
themselves under paragraph (c)(1)(ii), would have to be conducted in
accordance with nationally recognized auditing standards. OSHA
determines that this was a drafting error and that the Committee
intended that the entire audit be conducted in accordance with
nationally recognized auditing standards. Therefore, the Agency
solicited public comment on whether a new Sec. 1926.1427(c)(1)(ii)(D),
reading as follows, should be added to Sec. 1926.1427(c)(1)(ii):
(D) The audit shall be conducted in accordance with nationally
recognized auditing standards.
Several commenters stated that the regulatory text should remain
unchanged because, the commenters believed, the nationally recognized
accrediting agencies that accredit testing organizations do not review
the examinations for content but only for examination design,
administration, and maintenance. (ID-0175.1; -0205.1; -0211.1; -
0213.1.)
The Agency concludes that the commenters have misunderstood OSHA's
intent in this regard. Under Option (1) of this section, Sec.
1926.1427(b)(1), the accrediting agency must evaluate the ``written
testing materials'' as well as the ``practical examinations, test
administration, grading, facilities/equipment and personnel'' to make
sure they all meet ``industry recognized criteria.'' The accrediting
agency therefore must evaluate the tests as well as their
administration to confirm that they meet industry recognized criteria.
Just as the accrediting agency under Option (1) of this section
assesses written testing materials and the practical test for
compliance with industry recognized criteria, under Option (2) of this
section, as drafted by C-DAC and as written in the proposed rule, the
auditor must determine ``that the written and practical tests meet
nationally recognized test development criteria and are valid and
reliable in assessing the operator applicants * * *.'' (see Sec.
1926.1427(c)(1)(ii)(C)). No comments were received objecting to those
requirements.
OSHA determines that C-DAC's intent in designing Option (2) was, in
essence, to have the auditor serve a role similar to that of the
accreditor in Option (1). The accreditor in Option (1) assesses the
tests as well as their administration to determine if they meet
``industry recognized criteria.'' As drafted by C-DAC, the auditor does
the same thing, both with respect to assessing the tests and their
administration.
The problem identified by OSHA in the proposed rule relates to
auditing procedure, not testing criteria. For example, the records that
the auditor would generate and maintain, the procedures he/she would
use for obtaining documents that need to be examined to conduct the
audit, the thoroughness of the audit, and similar procedural matters
regarding the conduct of the audit need to accord with nationally
recognized auditing standards. Section 1926.1427(c)(1)(ii)(C) shows
that C-DAC concluded that it was important that the audit meet
nationally recognized auditing standards to help ensure the integrity
of the audit of the administration of the tests. OSHA determines that
it is equally important that the audit of the tests themselves meet
those same procedural criteria. Therefore, the Agency has added new
Sec. 1926.1427(c)(1)(ii)(D).
Paragraph (c)(3) requires that the program be audited within three
months of its inception and every three years thereafter. The Agency
has added ``at least'' to the final rule to clarify that the auditor
has the flexibility to perform audits more regularly if it so chooses.
Paragraph (c)(4) of this section requires the employer's program to
have testing procedures for re-qualification designed to ensure that
the operator continues to meet the technical knowledge and skills
requirement in Sec. 1926.1427(j). The re-qualification procedures must
be audited in accordance with Sec. Sec. 1926.1427(c)(1) and (c)(2).
In the event an auditor discovers a deficiency in an employer's
operator qualification program, the employer must meet the requirements
set forth in paragraph (c)(5) of this section. Under paragraph
(c)(5)(i), no additional operators may be qualified until the auditor
determines that the deficiency has been corrected. Under paragraph
(c)(5)(ii), the program must be re-audited within 180 days of the
confirmation that the deficiency was corrected. Paragraph (c)(5)(iii)
requires
[[Page 48021]]
the auditor to file a report of any such deficiency with the
appropriate OSHA Regional Office within 15 days of discovery. In
addition, paragraph (c)(5)(iv) requires that records of the audits must
be maintained by the auditor for three years and must be made available
by the auditor at the request of the Secretary of Labor or a designated
representative. The auditor's maintenance of the records, and the
reporting requirement, are intended to preserve the independent
verification function of the auditor.
Paragraph (c)(6)(i) specifies that a qualification under Option (2)
is not portable. As defined in Sec. 1926.1427(m)(2), ``not portable''
means that only the employer issuing the qualification may rely upon
it. OSHA has added that statement of meaning directly in paragraph
(c)(6)(i) in the final rule and has removed paragraph (m). C-DAC
determined that portability should be limited to certification under
Option (1) because the degree of consistency in adhering to the
requirements of this section is likely to be highest among accredited
crane operator testing organizations because they are fully independent
and their business interest depends on their continued accreditation.
Under paragraph (c)(6)(ii), a qualification under Option (2) is valid
for exactly five years.
A trade association stated that qualification under Option (2) of
this section (as well as Options (3) and (4)) should, like
certification under Option (1), also be portable. (ID-0214.1.) The
commenter stated that there was no rational reason to adopt a rule
where portability is restricted to Option (1) certifications. However,
OSHA concludes that C-DAC's decision to accord full portability only to
a certification under Option (1) is sound. A certification issued under
Option (1) is based on tests that are completely independent of any
particular employer. Moreover, the commenter's nominee to C-DAC did not
dissent on this issue and the commenter has not explained the reason
for changing its position. OSHA gives reduced weight to comments by a
nominating organization that are inconsistent with the position its
nominee took on C-DAC.
A utility company suggested that electric utilities be able to use
Option (2) without an independent auditor by allowing for an internal
audit of the employee training program based on annual employee
inspections, as allowed in Sec. 1910.269(a)(2). (ID-0342.) Granting
this request would permit electric utilities to self-certify their
operators. OSHA has rejected this option above and does so here for the
same reasons given earlier.
Some commenters stated that Option (2) was impractical because
there are currently no individuals who are accredited to carry out the
duties of the auditor under the option (ID-0151.1; -0329.1.) OSHA
notes, however, that employers have four years from the effective date
of this standard to comply with Sec. 1926.1427, and the agency
anticipates that, if the demand exists for the services of accredited
auditors, they will become available during that time frame.
An operator certification company recommended eliminating Option
(2) because, in the commenter's view, it lacks sufficient safeguards to
ensure the integrity of the qualification process. (ID-0330.1.) The
commenter views this Option as a form of self-certification that is
generally inconsistent with the rule's principle of third-party
verification. It suggests that this Option presents an inherent
conflict of interest based on the incentive that employers have to pass
their employee-operators and that the conflict is not cured by an
auditor's oversight of the program. OSHA disagrees. Under this option,
the auditor must be independent of the employer and certified by an
accredited testing organization. In OSHA's view, these requirements
provide adequate assurance that a testing program approved by the
auditor is of high quality and reliability.
Paragraph (d) Option (3): Qualification by the U.S. Military
Proposed Sec. 1926.1427(d) provided that an operator who is an
employee of the United States military would be deemed qualified if he/
she had a current qualification issued by the U. S. military. The
criteria for qualification under Option (3) would be left to the
military to determine, including the length of time such a
qualification would be valid. Qualification under this option would not
be portable unless it meets the requirements of Option (1) of this
section.
Unlike Options (1) and (2), Option (3) is available, in accordance
with the requirements of paragraph (d), whether or not the equipment is
operated within the jurisdiction of a State or local government that
has its own operating licensing requirement. The Agency notes that in
its comments requesting mandatory compliance with State licensing
requirements, New York State noted that it did not intend to supplant
Option (3). (ID-0171.1.) There is nothing in the record to indicate
that employees of the U.S. military who are authorized by the U.S.
military to operate equipment covered by this subpart are currently
required to comply with State or local licensing requirements.
In the proposed rule, OSHA noted that OSHA standards did not apply
to uniformed military personnel and to civilian employees of the
military who are engaged in uniquely military equipment, systems, and
operations. Accordingly, Option (3) would apply only to civilian
employees of the Defense Department and Armed Forces who are engaged in
work that is not uniquely military. It does not apply to employees of
private contractors who are working under contract to the military. In
the proposed rule, OSHA noted that the C-DAC document did not clearly
exclude such employees even though that was C-DAC's intent.
To make this point clear, OSHA is adding the following
clarification to Sec. 1926.1427(d)(1): An ``employee of the U.S.
military'' is a Federal employee of the Department of Defense or Armed
Forces and does not include employees of private contractors. This
clarification was originally proposed in Sec. 1926.1427(m), which is
removed from the final rule. Two commenters supported the clarification
proposed by OSHA. (ID-0205.1; -0211.1.) Another said the provision
should be clarified but did not express an opinion on whether OSHA's
proposed clarification should be adopted. (ID-0122.) In the absence of
any reasons presented in opposition to the proposed clarification, OSHA
is retaining the clarification.
Paragraph (d)(2) specifies that qualification under Option (3) is
not portable. Because this option is designed specifically to
accommodate civilian employees of the U.S. military, and therefore is
not based on the same criteria and independent third-party
verification. However, if a U.S. military entity meets the requirements
of Option (1), OSHA would consider the operator certification provided
by that entity to be portable.
Paragraph (e) Option (4): Licensing by a Government Entity
Paragraph (e) of this section of the final rule addresses
government licensing departments/offices that issue operating licenses
for equipment covered by this standard. Paragraph (e)(1) makes it clear
that OSHA is only requiring compliance with State or local operating
licensing requirements when those licensing programs meet the
requirements specified in paragraphs (e)(2). These requirements are
commonly referred to as a ``Federal floor,'' meaning that they are the
minimum criteria necessary to trigger
[[Page 48022]]
employer compliance with those licensing requirement under this
standard. OSHA is including this ``Federal floor'' because it
determines, as did C-DAC, that some, but potentially not all, State/
local governments will have effective, reliable licensing procedures.
If OSHA determines that a State or local licensing department/office,
or its testing, does not satisfy the minimum requirements set out in
paragraphs (e) and (j), then employers would not be required by OSHA to
comply with the licensing requirements of that government entity. In
such cases, the employer would satisfy the requirements of this section
by ensuring that their operators are certified or qualified in
accordance with the options provided in paragraphs (b) through (d).
The requirement for the government licensing department/office to
meet the criteria in Sec. 1926.1427(e)(2) ensures that operators who
qualify under Option (4) have the requisite knowledge and skills to
operate safely. Paragraph (e)(2)(i) requires that the criteria used by
the licensing department/office address the knowledge and skill
requirements listed in Sec. 1926.1427(j). Section 1926.1427(e)(2)(ii)
requires that the government entity follow the same test content, test
administration and related criteria as required under Option (1).
Section 1926.427(e)(2)(iii) requires that the office with authority
over the licensing department/office assess the tests and procedures
used by the licensing office/department and determine that the
requirements of Sec. Sec. 1926.1427(e)(2)(ii) and 1926.1427(e)(2)(iii)
have been met. Also, the government licensing office must have re-
certification procedures in place as discussed in Sec. Sec.
1926.1427(b)(1)(iv) and 1926.427(c)(4).
Under Sec. 1926.1427(e)(3)(i), a qualification under Option (4) is
valid only within the geographic jurisdiction of the licensing entity.
However, if the qualifications of Option (1) in Sec. 1926.1427(b) are
met, OSHA would consider the operator certification provided by that
entity to be portable. Under paragraph (e)(3)(ii), the qualification is
valid for the time period specified by the licensing entity, but for no
longer than five years.
Several commenters expressed the concern that OSHA's new standard
would preempt existing State or local laws, particularly those relating
to licensing of crane operators. Others encouraged the Agency to
expressly preempt those laws. The preemption issue is discussed in full
at the end of this preamble within section V.D addressing federalism.
Other Recommended Options
Commenters recommended that OSHA offer employers two additional
options for qualifying or certifying operators. One is to allow
employers to self-certify operators based on their own evaluation of
the operator's ability. For the reasons discussed in the introduction
to this section, OSHA rejects that suggestion.
A number of commenters recommended that OSHA expand the range of
options by allowing an accredited educational institution to certify
operators. (ID-0105.1; -0147.1; -0151.1; -0187.1; -0193.1.) At the
public hearing, a witness for a trade association further recommended
an option whereby operators could be trained and qualified through an
employer program developed by an accredited educational institution.
(ID-0343.)
Some commenters believed that additional options were needed
because they believed that Option (1) was the only viable option for
many employers and that an insufficient number of accredited testing
organizations existed to meet the demand that an OSHA rule would
create. (ID-0165.1; -0187.1; -0193.1.)
OSHA notes that an educational institution, like any other testing
organization, may become an accredited testing organization under
Option (1) by becoming accredited by a nationally recognized
accrediting agency based on the criteria listed under that option and
complying with the ``firewall'' requirements of Sec. 1926.1427(g).
However, OSHA determines the comments favoring this concept were
addressing OSHA's request for comment on whether to allow an
educational institution to certify operators based solely on its
accreditation by an organization recognized by the Department of
Education (DoE) without the need to be accredited under Option (1) (see
73 FR 59812, Oct. 9, 2008).
OSHA concludes that accreditation of an educational institution
under DoE criteria is insufficient to ensure that a certification
issued by the institution would reliably demonstrate that the crane
operator has the knowledge and skills needed for safe operation. The
fundamental reason is that the accreditation process for educational
institutions does not include an assessment of an institution's ability
to assess personnel competency.
A representative from a consensus standard organization addressed
this issue at the public hearing. The representative had experience
both in accrediting educational institutions and personnel
certification organizations. (ID-0344.) He testified that the
accreditation of an educational institution under the DoE system is
designed to assess the quality of the education an institution offers
but does not determine whether the individuals who have attended that
institution possess the specific skills or competencies required for
particular jobs. Unlike an educational institution, which focuses on
the number of graduates, attrition rates, and the percentage pass rate
on any national certification or State licensure examinations, a
personnel certification program is designed to address competency for
job performance. Among the concerns cited by the representative were
that the accreditation for an educational program does not assess
competency, and that the tests administered by an educational program
are not held to the same psychometric standards as those administered
by an accredited personnel certification program. The commenter said
higher education accreditation is concerned with the quality of
education. Personnel certification accreditation, on the other hand,
evaluates the quality of assessments to measure the acquisition and
ongoing maintenance of valid job competencies. (ID-0344.) In addition,
personnel certification is time-limited and certifying entities retain
the ability to withdraw certification if the individual subsequently
demonstrates a lack of competency. (ID-0344.) Institutions of higher
education cannot revoke or repossess diplomas.
The representative explained that a key difference between
educational accreditation and personnel accreditation is surveillance
of the test administration process by the accrediting body to ensure
that an individual's score is not tainted by prior knowledge of the
examination or by lack of security during the test itself. Using the
ANSI accreditation process as an example, he explained that a
certification entity seeking accreditation will undergo annual
surveillance--onsite during the first and third years, which can
encompass multiple sites if the certification entity's structure merits
such review. ANSI examines the controls over test items and the
development of test items, to ensure that these items are not released
to the public. ANSI also looks to ensure that the organizational
structure of the certifying entity is reflective of the population it
is intended to serve, and that the administration is fair and equitable
among all the applicants.
[[Page 48023]]
These criteria are not required elements of accreditation for higher
education institutions, according to both the representative and
Department of Education materials (see 34 CFR part 602).
There is another reason why certification by an educational
institution would, in most cases, not be suitable for crane operators:
The need for personnel testing to be independent of the training that
precedes the testing. As discussed below, Sec. 1926.1427(g) of this
rule is designed to ensure that training is separate from testing to
prevent an organization that offers both services from defeating the
validity of the test by ``teaching to the test.'' OSHA acknowledges
that it might be possible for an educational institution to provide the
necessary ``firewalls'' between its training and testing, and obtain
the separate accreditation required under this section, such that it
could comply with Sec. 1926.1427(g). However, educational institutions
typically both teach and test, and may do so within their educational
accreditation without any requirement that the testing process be
insulated from the teaching process.
The purpose of a personnel certification test is different from a
test offered by an educational institution, which is to determine
whether the individual has mastered the material that was taught. As a
labor representative stated at the hearing, personnel certification
tests examine a random sampling of information that individuals must
know to perform the function being tested. (ID-0341.) The labor
representative pointed out that if the individual is tested only on the
material he or she has been taught, the individual learns only the
information needed to pass the test and the test is not a reliable
measure of the person's depth of knowledge on the subject. Therefore,
allowing educational institutions to certify crane operators based
solely on their DoE accreditation would be inconsistent with the
principle that testing for certification purposes should be independent
of any training that the individual has received and would severely
compromise the reliability of the certification process.
In sum, the DoE accreditation system for educational institutions
is not designed to assess the capabilities that are needed for
developing or administering personnel competency tests.\117\
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\117\ At least one other Federal agency has also taken this view
of certification. The Department of Defense requires the
certification of certain personnel performing Information Assurance
functions within that organization. Appendix 2 to DoD 8570.01-M, the
directive addressing such certifications, requires that the
certifications must be accredited, and maintain accreditation, under
ISO 17024. (ID-0346.1.)
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Moreover, concerns about inadequate availability of certifying
entities are unfounded. At the time of the proposed rule, two testing
organizations, NCCCO and the Southern California Crane & Hoisting
Association, had been accredited (see 73 FR 59812, Oct. 9, 2008). By
the time of the hearing, four additional testing organizations had been
accredited: The Operating Engineers Certification Program, Union
Pacific Railroad, National Center for Construction Education and
Research, and Crane Institute Certification. (ID-0343.) Although some
of these are not available to all employers or crane operators, it does
not appear that there will be a lack of availability of testing
services under Option (1), particularly with the four-year phase-in
period for Sec. 1926.1427.
In addition, the record shows that testing organizations arrange
for testing to be available at convenient locations. For example, NCCCO
offers the written test anywhere in the country where it receives
adequate notice and an appropriate testing room is available. (ID-
0343.) NCCCO also sends examiners to an employer's worksite to
administer the practical tests. (ID-0343.) OSHA therefore concludes
that the current four options afford crane operators and their
employers sufficient opportunity to obtain qualification/certification
and that additional options are not needed to make such services
readily available.
Two building trade associations recommended that OSHA add an option
that combines aspects of Option (2) of this section with tests
developed by an accredited educational institution. (ID-0218.1; -
0232.1.) Under their recommendation, the educational institution would
develop written and practical tests, and the tests would be approved by
an auditor who is certified by an accredited educational institution as
qualified to evaluate such tests. The actual operator certification
would be issued by the accredited educational institution.
OSHA determines that this recommended program is, in practical
effect, not significantly different than the general recommendation for
OSHA to allow certification by an accredited educational institution.
First, it is likely that educational institutions would be
administering tests to individuals who have taken their training
courses without ``firewall'' separation between those functions,
thereby giving rise to the problem addressed above that testing would
not be independent of training and would therefore be of reduced
reliability. Second, although the commenters would not permit the
auditor to be employed by the employer, there is no prohibition against
the auditor being employed by the accredited educational institution
who certifies him/her. In OSHA's view, this creates the potential for a
conflict of interest because the auditor would not be independent of
the institution whose tests he or she is reviewing. OSHA finds that the
recommendation by the commenters does not contain sufficient safeguards
to ensure that the tests provide an indicator of operator competence
that is comparable to the other options permitted under this rule.
One commenter asked OSHA to prohibit different organizations from
administering the written and practical testing. (ID-0199.1.) The
commenter stated that it is necessary for one organization to maintain
oversight of the entire test process. The commenter did not provide any
support for this assertion, nor has OSHA identified any other evidence
in the record to support it. OSHA does not find the request persuasive
and is instead relying on the accreditation requirements to ensure that
the certifying entity administers all testing appropriately.
Paragraph (f) Pre-Qualification/Certification Training Period
Section 1926.1427(f) establishes a process by which operators who
are not certified or qualified can get experience operating the
equipment to help prepare for obtaining a certification/qualification.
Section 1926.1427(f) allows employees who are not yet qualified or
certified to operate cranes provided that they qualify as ``operators-
in-training'' in accordance with Sec. Sec. 1926.1427(f)(1) through
(5), which require appropriate monitoring of such operators-in-training
to ensure worksite safety and places limitations on the tasks they can
perform. OSHA revised proposed Sec. 1926.1427(f) to clarify that
employees who do meet the requirements of an ``operator-in-training,''
and who are not otherwise certified or qualified under this section,
are prohibited from operating equipment (except for maintenance, as
provided in Sec. 1926.1429 of this subpart). OSHA has removed the text
that was in proposed paragraph (f)(2) as redundant,\118\ and has
renumbered paragraph (f) of this section.
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\118\ Proposed paragraph (f)(1) of this section had provided
that ``[a]n employee who is not qualified or certified under this
section is permitted to operate equipment'' by satisfying the
requirements of proposed paragraph (f).'' Proposed paragraph (f)(2),
and an alternative also included in the proposed rule, had granted
the same permission to any employee who had not passed the written
exam or practical tests required under Sec. 1926.1427. While OSHA
still intends that employees who have passed either the written exam
or practical test be eligible to serve as an ``operator-in-
training,'' it is not including this text in the regulation because
these employees are already addressed by the language that was in
proposed paragraph (f)(1) (``an employee who is not qualified or
certified under this section'') and is included in the final rule as
the introductory text for paragraph (f).
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[[Page 48024]]
The proposed rule used the phrase ``trainee/apprentice'' to
describe an operator-in-training, the word ``supervisor'' to describe
the individual responsible for monitoring the operator-in-training, and
the word ``supervise'' to describe that individual's oversight of the
operator-in-training. Several commenters suggested that the terms
``trainee,'' ``apprentice,'' and ``supervisor'' could be construed to
have labor/management consequences under the National Labor Relations
Act (NLRA). (ID-0182.1; -0199.1; -0341.0.) OSHA did not intend for
these terms to be construed as they are used under the NLRA, and, to
avoid any possible confusion on the subject, has changed ``supervisor''
to ``trainer,'' ``trainee/apprentice'' to ``operator-in-training,'' and
``supervise'' to ``monitor'' in the final rule.
Paragraph (f)(1) requires that the operator-in-training be provided
with sufficient training prior to operating the equipment to enable
him/her to operate it safely under the limitations listed in this
section and any additional limitations established by the employer.
This ensures that, before beginning to operate the equipment at the
site, the operator-in-training would have attained sufficient knowledge
and skills to operate the equipment safely within the limitations and
with the monitoring required by the remainder of Sec. 1926.1427.
Paragraph (f)(2) restricts the operator-in-training operation of
the equipment to those tasks currently within his/her ability. As the
operator-in-training gains experience and demonstrates increased skill,
this provision allows him/her to perform progressively more complex
tasks.
Paragraph (f)(3) sets forth the requirements that an employee would
have to meet to be permitted to monitor the operator-in-training's
operation of the crane. During the training period, the operator-in-
training must be closely monitored to ensure that he/she is operating
in accordance with the training he/she has received and is adhering to
the limitation in paragraph (f)(2) that he/she only performs tasks
currently within his/her ability.
Under paragraph (f)(3)(i) the operator-in-training's trainer has to
be an employee or agent of the operator-in-training's employer. This
ensures that the trainer has the authority to direct the actions of the
operator-in-training.
Paragraph (f)(3)(ii) requires that the operator-in-training's
trainer must be either a qualified/certified operator (in accordance
with Sec. 1926.1427), or to have passed the written portion of a
qualification/certification test under one of the Options in Sec.
1926.1427. In addition, the trainer must be familiar with the proper
use of the equipment's controls. This provision is designed to ensure
that the trainer has sufficient knowledge about the equipment to enable
him/her to effectively oversee the safe operation of the crane.
Paragraph (f)(3)(iii) requires that the trainer perform no tasks
that would detract from his/her ability to monitor the operator-in-
training. This provision ensures that the trainer is able to devote
sufficient attention what the operator-in-training is doing so that he/
she can intervene to prevent the operator-in-training from doing
anything unsafe.
Under paragraph (f)(3)(iv), for equipment other than tower cranes,
the trainer and the operator-in-training must be in direct line of
sight of each other and are required to communicate either verbally or
by hand signals. This provision ensures that the trainer monitor can
rapidly and effectively give instructions to the operator-in-training,
especially for purposes of correcting anything that the operator-in-
training may be doing incorrectly.
With respect to tower cranes, the height of the operator's station
will often make it infeasible to maintain direct line of sight between
the trainer and the operator-in-training. For the same reason, use of
hand signals is also often not feasible. Therefore, the provision
instead requires that they be in direct communication with each other.
For example, direct communication could be achieved by radio or other
instant electronic voice communication system.
Section 1926.1427(f)(4) permits the operator-in-training to
continue operating the crane in the absence of the trainer for short
breaks under criteria designed to result in safe operation. This
provision recognizes that monitoring 100 percent of the time is neither
practical nor is it necessary for safe operation if appropriate
limitations are imposed. Those limitations are listed in paragraphs
(f)(4)(i)-(iii):
Under paragraph (f)(4)(i), the break would be restricted to no more
than 15 minutes, with no more than one break per hour.
Under paragraph (f)(4)(ii), immediately prior to the break, the
trainer must inform the operator-in-training of the specific tasks that
the operator-in-training is authorized to perform and the limitations
that he/she must adhere to during the break.
Under paragraph (f)(4)(iii), the specific tasks that the operator-
in-training would perform during the break must be within the operator-
in-training's ability.
Proposed paragraph (f)(2)(v) \119\ stated that a ``* * * trainee/
apprentice shall not operate the equipment in any of the following
circumstances.'' This paragraph was followed by paragraphs
(f)(2)(v)(A)-(E). Of these, paragraphs (f)(2)(v)(A)-(D) contained
absolute prohibitions while paragraph (f)(2)(v)(E) contained a
conditional prohibition. To avoid inconsistency between paragraph
(f)(2)(v) and the paragraphs that followed, the paragraph, which is now
at Sec. 1926.1427(f)(5) has been modified to make clear that there is
an exception at (f)(5)(v).
---------------------------------------------------------------------------
\119\ This requirement is now located at Sec. 1926.1427(f)(5).
---------------------------------------------------------------------------
Paragraph (f)(5) recognizes that certain tasks are too complex or
present such heightened risks that it would be unreasonably dangerous
if a less than fully qualified operator were to operate the equipment.
For the circumstances listed in Sec. Sec. 1926.1427(f)(5)(i)-(v), the
operator-in-training is prohibited from operating the equipment in all
cases. With respect to operations involving multiple-lift rigging, the
Committee determined that the difficulty and/or risk involved is not at
the same level as the operations listed in Sec. Sec.
1926.1427(f)(5)(i)-(iv). Consequently, while Sec. 1926.1427(f)(5)
contains a general prohibition against an operator-in-training
operating the equipment during multiple-lift rigging operations, an
exception would apply where the trainer determined that the operator-
in-training's skills are sufficient for this high-skill work.
A utility company objected to the requirement in proposed Sec.
1926.1427(f)(2)(v)(A) that operators-in-training who are performing
subpart V work (construction and improvement of power lines) maintain
at least a 20-foot distance from energized power lines, asking that
operators-in-training only be required to maintain the same clearance
from power lines (those listed in Table V-1 of subpart V) as certified
operators. (ID-0144.1.) This commenter claimed that the prohibition
would limit the ability of electric utility owners and operators to
provide operators-in-training with hands on training.
[[Page 48025]]
Based on the record as a whole, OSHA is convinced that the risk of
injury from contact with an energized power line is so great that it
warrants extra precautions, particularly with respect to operators who
are still learning how to operate their equipment. OSHA notes that the
other electric utilities and representatives who submitted comments and
appeared at the hearing did not voice a similar concern, nor did the
industry's representatives on C-DAC. OSHA also notes that the exclusion
of digger derricks from the scope of this subpart for pole work should
largely alleviate this commenter's concern. Accordingly, OSHA is
retaining paragraph (f)(5)(i) in the final rule.
Paragraph (g)
Paragraph (g) of this section provides that ``a testing entity is
permitted to provide training as well as testing services as long as
the criteria of the applicable accrediting agency (in the option
selected) for an organization providing both services are met.'' This
paragraph serves two purposes. First, it makes clear that an entity
providing qualification/certification testing may also provide training
to the individuals it tests, as well as others. Second, it establishes
a condition such entities must satisfy: the testing agency must meet
the criteria of its accrediting agency for an organization providing
both services.
For example, an industry consensus standard, the International
Organization for Standardization (``ISO'') 17024, requires that a
certifying entity only offer training if it can demonstrate that the
training is independent of both evaluation and certification. This is
intended to prevent the entity's training arm from ``teaching to the
test,'' which would detract from the test's ability to determine the
individual's true knowledge of the subject matter needed for safe
operation. It is also necessary to protect the integrity of the
testing. Therefore, with respect to those accrediting agencies that
apply the ISO standard, a testing entity may also conduct training as
long as an adequate ``firewall'' exists between the two functions.
Paragraph (h)
Paragraph (h) of this section addresses C-DAC's concern that some
competent crane operators may be hindered in obtaining qualification or
certification under this section because they have difficulty with
taking written tests even though they possess sufficient literacy for
reading and understanding safety-related material such as the crane's
operating manual and load chart. To avoid disqualifying individuals
solely because they have this type of difficulty, paragraph (h) permits
written tests under this section to be administered verbally, with
answers given verbally, where the operator candidate (1) passes a
written demonstration of literacy relevant to the work; and (2)
demonstrates the ability to use the type of written manufacturer
procedures applicable to the class/type of equipment for which the
candidate is seeking certification. These would typically include, for
example, the load chart and operator's manual for the crane the
candidate would be operating. Thus, paragraph (h) only permits tests to
be administered verbally where the individual demonstrates the literacy
needed to read and understand written material needed for safe
operation.
As explained in the proposed rule, neither of the demonstrations in
paragraphs (h)(1) or (h)(2) would have to be made in English (see 73 FR
59816, Oct. 9, 2008). As an example, under these provisions, an
employer could obtain a Spanish-language version of the load charts and
operator's manual, and arrange to have the literacy test administered
in Spanish. An operator able to meet the requirements of Sec.
1926.1427(h) using these Spanish language materials would have
demonstrated adequate literacy under the rule.
A trade association supported the provision allowing examinations
to be administered verbally. (ID-0151.1.) A testing organization
opposed the provision, believing it adds an unnecessary and potentially
harmful step in the qualification process. (ID-0343.) The testing
organization was concerned that the rule does not identify standards or
protocols by which the written demonstration of literacy relevant to
the work and the ability to use written manufacturer procedures are to
be made.
OSHA recognizes the testing organization's concern but concludes
that the rule must allow sufficient flexibility in the testing process
to enable individuals who have sufficient literacy skills and are
demonstrably competent to operate a crane, but are deficient in written
test-taking ability, to obtain qualification/certification under this
rule. Accordingly, OSHA is retaining the provision allowing tests to be
administered verbally if the specified demonstrations of literacy are
made.
OSHA requested comment on several issues arising under paragraph
(h), including (1) Whether, if an operator complies with paragraph (h)
by demonstrating proficiency in a language other than English, the
qualification/certification should be limited to the use of equipment
that is equipped with materials in the operator's language; (2) whether
the rule needs to incorporate safeguards to ensure that a translation
of manufacturer-supplied materials conveys the same information as the
original; (3) whether employers should be permitted to use manuals that
have been re-written in simplified language to accommodate individuals
whose literacy level does not permit them to understand the
manufacturer-supplied materials.
One trade association commented that, in many regions of the United
States, employers rely on non-English speakers to operate cranes and
stated that OSHA should require testing organizations to offer crane
operator certification in languages other than English. (ID-0231.1.)
OSHA's longstanding position is that workers must be trained and
provided with information in a language that they can understand. That
is particularly important for crane operators, who will be in control
of large pieces of equipment, with the potential to inflict major
damage and injury.
It was C-DAC's intent in the proposed rule, and it is OSHA's intent
in this final rule, that non-English speaking operators will have the
ability to become certified using languages other than English.
Paragraph (h)(2) of the rule, therefore, authorizes testing
organizations to administer tests in any language that the operator
candidate understands. Paragraph (h)(2) is intended to ensure that
crane operators are certified in a language that they comprehend, and
that the cranes they operate are equipped with the requisite materials
in that language. OSHA intends to work with certifying organizations to
ensure that examinations in appropriate languages are available within
the four-year phase-in period under this section.
OSHA expects employers who perform their own testing under
paragraph (c) to test candidates in the languages understood by their
workers. OSHA concludes that accredited testing organizations providing
certifications under paragraph (b) should likewise provide testing in
major languages understood by the relevant worker population of the
regions in which they do business. Doing so will maximize an
organization's share of the testing market. Moreover, OSHA expects that
employers who rely on testing organizations will demand testing in the
languages understood by their workforces.
[[Page 48026]]
Paragraph (i) [Reserved.]
Paragraph (j) Certification Criteria
Paragraph (j) of this section sets out the qualification and
certification criteria applicable to Options (1), (2), and (4) of this
section. These criteria address the knowledge and skills that are
fundamental to safe crane operation. As stated in the introductory
language in Sec. 1926.1427(j), these would constitute ``minimum''
criteria; the accredited testing organizations, employers, or local or
State licensing offices would not be precluded from adding additional
requirements to their certification or qualification programs.
Paragraph (j)(1) describes the criteria that must be covered by the
written examination portion of a qualification/certification program.
As stated above in the discussion of examination administration, the
written portion of the examination may be administered orally, so long
as the candidate has demonstrated sufficient literacy relevant to the
work (e.g., load charts and equipment manual).
Paragraph (j)(1)(i) states that the individual seeking
qualification or certification must know ``the information necessary
for safe operation of the specific type of equipment the individual
will operate * * *'' Paragraph (j)(1)(i) goes on to list specific types
of information the individual must know.
Paragraph (j)(1)(i)(A) requires that the written examination
address the candidate's knowledge of the equipment controls and
operational/performance characteristics of the specific type of
equipment. Operational/performance characteristics would include, for
example, the deflection characteristics of the boom, including how
deflection affects the positioning of the load and the extent to which
deflection varies with boom angle and length as well as load weight.
Also, equipment with lattice/cable supported booms has different
deflection characteristics than equipment with non-lattice booms (that
is, hydraulic ram extensible booms).
Paragraph (j)(1)(i)(B) requires the candidate to know the use of,
and be able to calculate (manually or with the use of a calculator),
load/capacity information on a variety of configurations of the
equipment. Such information is typically contained in load charts and
manuals. This provision ensures that the operator is able to accurately
determine, independently, the capacity of the equipment in each
situation that he/she might encounter and thereby avoid overloading the
equipment.
Paragraph (j)(1)(i)(C) requires the candidate to know procedures
for preventing and responding to power line contact. As discussed above
in relation to Sec. Sec. 1926.1407-1926.1411, electrical contact with
power lines is one of the principal causes of crane-related fatalities
and injuries, and those sections contain detailed requirements for
preventing such contact and for reducing the likelihood of death or
injury should such contact occur.\120\ Knowing how to prevent and
respond to power line contact is therefore critical knowledge for any
crane operator.
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\120\ As provided in Sec. 1926.1408(g)(1)(i)(A) on power line
safety, operators must be aware of the danger of electrocution if
they simultaneously touch energized equipment and the ground. They
must also, pursuant to Sec. 1926.1408(g)(1)(i)(B), be trained to
understand that when the equipment makes electrical contact with a
power line, the operator's safety requires him or her to remain
inside the cab except where there is an imminent danger of fire,
explosion, or other emergency that necessitates their leaving the
cab.
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Paragraph (j)(1)(i)(D) addresses the need for crane operators to
have technical knowledge similar to the subject matter listed in
Appendix C applicable to the specific type of equipment the individual
will operate. These criteria were selected by C-DAC because, in the
experience of the committee's members, they are critical knowledge and
skill areas for equipment operators. OSHA defers to C-DAC's experience
on this issue and notes that the Agency did not receive any comments
suggesting that a particular item be removed from this list. While
testing based on the specific list provided in Appendix C is not the
means of satisfying the requirements of Sec. 1926.1427(j)(1)(i)(D),
alternative criteria must be ``similar to'' that of Appendix C. The
appendix also serves as a ``safe harbor,'' meaning that testing on all
of the criteria provided in Appendix C would satisfy the requirements
of Sec. 1926.1427(j)(1)(i)(D).
In addition to the technical knowledge that is required under Sec.
1926.1427(j)(1)(i)(D), technical knowledge applicable to three specific
subjects is required under Sec. 1926.1427(j)(1)(i)(E). Paragraph
(j)(1)(i)(E)(1) requires that an operator have technical knowledge
about the suitability of the supporting ground and surface to handle
expected loads. Paragraph (j)(1)(i)(E)(2) requires operators to possess
technical knowledge applicable to site hazards, such as hazards posed
by excavations or vehicular traffic. Paragraph (j)(1)(i)(E)(3) requires
operators to have technical knowledge about site access so that the
operator can evaluate whether conditions at the point of access to the
site enable the equipment to travel safely onto or off of the site. For
example, where equipment must descend or ascend a dirt ramp, the
operator needs to be able to assess the effect of the ramp's steepness
and to detect signs of instability.
Paragraph (j)(1)(i)(F) requires operators to demonstrate a thorough
knowledge of this subpart, including incorporated materials. Operators
play a key role in the application of these requirements, and it is
therefore essential that they understand them. Paragraph (j)(1)(ii)
provides that the individual is able to read and locate relevant
information in the equipment manual and other materials containing
information referred to in paragraph (j)(1)(i) of this section. As
discussed above in relation to paragraph (h), the written materials to
which this paragraph refers must be in a language that the individual
can read and in which the individual is tested.
Paragraph (j)(2) requires that the qualification/certification
examination include a determination through a practical test that the
individual has the skills necessary for the safe operation of the
equipment. It also states criteria for such a test. Paragraph (j)(2)(i)
requires that an individual demonstrate the ability to recognize, from
visual and auditory observation, the items listed in proposed Sec.
1926.1412(d), which sets criteria for shift inspections. Paragraph
(j)(2)(ii) requires the operator to demonstrate operational and
maneuvering skills. Paragraph (j)(2)(iii) requires that the operator
demonstrate the ability to apply load chart information. Paragraph
(j)(2)(iv) requires that an operator be able to apply safe shut-down
and securing procedures.
One commenter suggested incorporating standard verbal operation
signals into the certification criteria. (ID-0110.1.) A different
commenter asked OSHA to require knowledge of the ``dynamics of boom
flex'' in its criteria for certification. (ID-0125.) To the extent that
knowledge of such signals and the dynamics of boom flex are required
for the safe operation of the type of equipment the individual will
operate, they would be covered under Sec. 1926.1427(j)(1)(i). The
examples of the types of information that would be required for
certification are not all inclusive. OSHA defers to C-DAC's experience
with respect to the determination of which examples should be
highlighted in paragraph (j).
No other comments were received on Sec. 1926.1427(j); it is
promulgated as proposed, except that OSHA has corrected ``audible
observations'' to read
[[Page 48027]]
``auditory observations (observations through the use of the ear).
Paragraph (k) Phase-In
As discussed above, a number of commenters believe that Option (1)
of this section (certification by an accredited testing organization)
is the only viable option for many employers and expressed concern
about the availability of sufficient accredited testing organizations
to meet the demand that this rule would create. Therefore, in the final
rule, OSHA has provided a four-year phase-in period for compliance with
paragraph (a)(2), which requires employers to have their operators
certified or qualified under Option (1) (independent certifying
organization), Option (2) (audited employer certification), or Option
(3) (U.S. military employees). Paragraph (k)(1) of this section of the
final rule sets out different effective dates for the different
provisions of Sec. 1926.1427: all provisions except paragraphs (a)(2)
and (f) of this section are enforceable as of the effective date of new
subpart CC, whereas the certification required under paragraph (a)(2)
will not be required until the end of the phase-in period, which is
four years after the effective date of subpart CC.
The phase-in period does not apply to compliance with licensing
requirements of government entities. Those government entities already
require compliance with their own licensing requirements, and OSHA sees
no rationale for delaying compliance with existing law. Employers would
be required to comply with State or local government entity licensing
requirements only to the extent that State or local government entity
licenses comply with the ``Federal floor'' established in paragraphs
(e)(2) and (j) of this section. The options available under Sec.
1926.1427(a)(2) would remain available, and the four-year phase-in
period would apply.
As already discussed, C-DAC determined that the market would
respond to a qualification/certification requirement, and the increase
in the number of accredited testing organizations since C-DAC completed
its consensus document validates that view (OSHA notes that several
more testing organizations have become accredited since the proposed
rule was issued). There is no evidence in the record that the available
testing organizations will be unable to meet the demand even if almost
all employers choose that option. The four year period will provide
time for additional testing organizations to become accredited for
purposes of Option (1).
A labor organization suggested that the four-year phase-in period
be reduced to two years. (ID-0409.1.) The commenter stated that C-DAC
agreed to the four-year period when it issued its report in 2004 to
allow sufficient time for additional certification services to become
available. It noted that several additional testing organizations had
become accredited since 2004 to meet the demand for certification under
various State laws and suggested that the number of accredited testing
organizations was now sufficient to meet the demand under this rule
within two years. Another commenter also suggested that the phase-in
period could be reduced to two or three years if sufficient certifying
organizations are available when the final rule is issued. (ID-0104.1.)
OSHA concludes that the rulemaking record supports the proposed
four-year phase-in period. While the availability of certification
services has increased since C-DAC issued its report, four years is a
reasonable amount of time to ensure that the supply of certification
services will be sufficient to meet demand. It will also provide time
for those operators who need additional training to pass qualification/
certification tests to complete that training, and for accredited
testing organizations to develop tests in languages other than English
to accommodate crane operators for whom English is not their first
language.
The four year period will also provide time for the market to also
respond to demand for certification programs for certified auditors as
described under Option (2) of this section (and for employers who so
choose to develop audited programs for use under Option (2)). Some
State and local government entities now offer licenses and, if those
licensing organizations do not already meet the criteria under Option
(4) of this section, the four-year phase-in period gives them time to
do so if they so choose. C-DAC's determination that four years is a
reasonable phase-in period was not based solely on the availability of
testing services under Option (1) of this section, and OSHA continues
to agree that period is appropriate.
Under paragraph (k)(1), during this four year period, Sec. Sec.
1926.1427(k)(1)(i) and (ii) address the qualifications and training an
operator must have before becoming qualified or certified under one of
the four options. Section 1926.1427(k)(1)(i) requires that operators be
competent for the purposes of operating the equipment safely. This
means that the operator must have the requisite knowledge and skill to
identify, anticipate, and avoid actions which could result in hazardous
conditions related to the equipment and job site.
Paragraph (k)(1)(ii) requires that employers ensure that operators
who do not already have sufficient knowledge or skill to operate the
equipment safely undergo training prior to engaging in operations. In
addition, the employer is required to ensure that the operator is
evaluated to confirm that he/she understands the information provided
in the training.
The interim measures in paragraph (k)(1) are not significantly
different from requirements that were effective under subpart N of this
part at former Sec. 1926.550, Sec. 1926.20(b)(4) (``the employer
shall permit only those employees qualified by training or experience
to operate equipment and machinery''), and Sec. 1926.21(b)(2)(``the
employer shall instruct each employee in the recognition and avoidance
of unsafe conditions . . .''). However, they are included in this final
rule to ensure that there will not be a gap with respect to operator
qualifications between the termination of the requirements under
subpart N of this part at former Sec. 1926.550 and the effective date
of Sec. Sec. 1926.1427(a) through (j) and (m).
Paragraph (l) [Reserved.]
Definitions
The proposed rule contained definitions of ``portable'' and ``not
portable'' in proposed Sec. 1926.1427(m). In addition, OSHA stated
that it was considering adding a definition of ``employee of the U.S.
military'' to paragraph (m). As noted above, OSHA has moved the
definitions of ``portable'' and ``not portable'' to the provisions
where those terms are used, and has added a definition of ``employee of
the U.S. military'' to paragraph (d). As a result, proposed paragraph
(m) is not needed and is removed.
Physical Qualifications and Substance Abuse Testing
Physical Qualifications
C-DAC considered whether to include in this standard provisions
that would require equipment operators to meet particular physical
qualifications. After considering various possible approaches,
including those in industry consensus standards, the Committee decided
that it would be very difficult, and likely unnecessary, to identify
minimum physical requirements that would be appropriate.
First, the physical demands of equipment covered by this rule vary
significantly depending on the type and,
[[Page 48028]]
in some cases, age of the equipment. For example, some equipment is
operated largely by electronic controls. In contrast, older ``friction
cranes'' have pedal controls that can require significant strength and
stamina to operate. Some equipment is air conditioned whereas other
equipment is not. Tower cranes can require very long climbs to the
operator station; small mobile hydraulic cranes typically have an
operator's station that is much more easily accessible. A requirement
regarding physical qualifications would have to account for these types
of differences.
Second, establishing physical qualifications that would
appropriately account for the effect of medical conditions would be a
complex undertaking. The Committee ultimately determined that, in light
of its members' experience that accidents caused by problems associated
with the operator's physical/medical condition are rare, the issue of
physical qualifications did not need to be addressed by this standard.
Several commenters suggested that OSHA should require operators to
undergo and pass medical examinations. (ID-0104.1; -0143.1; -0151.1; -
0152.1; -0187.1.) A trade association suggested that medical testing of
vision, hearing, and potential for seizures, epilepsy, emotional
instability, high blood pressure, and other physical impairments should
be part of requirements for safe crane operation. (ID-0187.1.) A safety
consultant stated that establishing physical qualifications that would
appropriately account for the effects of medical conditions would not
be a complex undertaking. (ID-0152.1.) This commenter suggested that a
doctor who performs an operator's physical and medical examination
could determine if an operator was medically qualified to operate a
crane.
OSHA is not persuaded by these comments. First, OSHA concludes that
it would not be reasonable to rely on the unguided discretion of
examining physicians to determine whether an operator is medically
qualified to operate a crane. Doing so would likely lead to a wide
variation in the medical conditions that different physicians believe
are either necessary or unnecessary for crane operation. Moreover,
individual physicians are unlikely to be aware of the variety of
conditions that may influence an individual's ability to operate a
crane safely, such as the variation in strength needed to operate the
controls on different types of cranes. Although physicians are able to
determine if an individual has a particular medical condition, they are
not well situated to determine if that condition should preclude the
individual from operating a crane.
OSHA also finds the comment by the trade association to be
unpersuasive. First, this commenter nominated a C-DAC member, who did
not dissent on this issue. The commenter did not explain why it is
deviating from the position its nominee took on C-DAC, and for that
reason OSHA gives reduced weight to its comment. Moreover, OSHA notes
that some of the criteria suggested by the commenter, particularly the
phrase ``other physical impairments,'' are of questionable value in
determining the physical qualifications of crane operators. Indeed,
OSHA determines that the commenter's inclusion of such a catchall
phrase highlights the difficulty of trying to list the medical
conditions that should preclude a person from operating a crane.
In short, OSHA has not been given any persuasive reason to deviate
from the considered judgment of C-DAC that this standard should not
address the issue of physical qualifications of equipment operators.
Substance Abuse Testing
As explained in the proposed rule, C-DAC considered whether to
include mandatory substance abuse testing for equipment operators and
others, such as signal persons, whose jobs affect safety. It decided
against doing so because of the procedural limitations such a
requirement would impose on employers who have voluntarily instituted
substance abuse programs; a government mandate for substance abuse
testing would have to meet constitutional safeguards.\121\ For example,
under a government-mandated testing program, an employer likely would
not be permitted to ``stand down'' an operator based on an unconfirmed
test result but would need to wait until a positive result is verified
by a medical review officer. The Committee did not want to restrict an
employer's ability to suspend an operator who tested positive pending
confirmation of the result.
---------------------------------------------------------------------------
\121\ See Skinner v. Railway Labor Executives' Ass'n, 489 U.S.
602 (1989); International Brotherhood of Teamsters v. Department of
Transportation, 932 F.2d 1292 (9th Cir. 1991).
---------------------------------------------------------------------------
In short, the Committee balanced the potential benefits from a
requirement for substance abuse testing that would have more
restrictive procedures against the fact that many employers already
have their own programs in place that, in C-DAC's view, may be more
protective than what could be enacted as an OSHA requirement. C-DAC
concluded that it would be better not to include a substance abuse
requirement.
Several commenters recommended that OSHA include substance abuse
testing in the final rule. (ID-0104.1; -0105.1; -0151.1; -0152.1; -
0187.1.) These commenters did not, however, address C-DAC's conclusion
that an OSHA mandate for such testing could have the adverse
consequence of limiting employers' ability to enforce their own
substance abuse testing programs and could thereby detract from
worksite safety. OSHA therefore defers to C-DAC's judgment and declines
to include a substance abuse testing requirement in the final rule.
Section 1926.1428 Signal Person Qualifications
As discussed under Sec. 1926.1419, Signals--general requirements,
the safety of equipment operations depends in many situations on
signals given to the operator. It is critical that the operator
understand the signals given, and the signal person must therefore be
able to give clear, accurate and appropriate signals that unambiguously
convey the needed information. The Committee, which included a number
of members with significant experience with signal persons, was
concerned that some signal persons are not able to recognize the
hazards involved with certain crane operations, do not, in some cases,
understand what it is that the crane needs to do to accomplish the
task, and do not know how to give the appropriate signals. This poses
hazards, such as struck-by and crushed-by hazards, due to either
miscommunication or the communication of instructions that are
inappropriate.
An example of the type of accident that can be caused by
miscommunication from not knowing the appropriate signals is as
follows: The signal person intends to indicate to the operator to hoist
up, since the load needs to be raised straight up. However, the signal
person uses the standard signal for booming up in the mistaken belief
that this signal is for hoisting up. A struck-by or crushed-by incident
could result because, when booming up, the load will move laterally as
well as vertically.
A failure to understand what it is that the crane needs to do to
accomplish a task can also lead to struck-by or crushed-by incidents.
For example, as a crane booms down, boom deflection tends to increase,
which has the effect of lowering the load more than if there were no
boom deflection. If the signal person is unfamiliar with this boom
characteristic, he or she may fail to
[[Page 48029]]
signal in time for the load to stop at the correct point or may cause
the load to descend too quickly.
The Committee concluded that to prevent such accidents it is
necessary to establish qualification criteria that would have to be met
for an individual to serve as a signal person (that criteria is set out
in proposed Sec. 1926.1428(c), discussed below). The employer would
have the option of using one of two methods for ensuring that these
criteria were met. Under Option (1) of this section (Sec.
1926.1428(a)(1)), the signal person would have documentation from an
independent ``qualified evaluator (third party),'' as defined in Sec.
1926.1401, showing that the evaluator had determined that the signal
person meets the requirements of Sec. 1926.1428(c).
This qualification would be portable, that is, any employer could
rely on such documentation to show that a signal person meets the
criteria. C-DAC determined that such portability would be appropriate
because of the independence and expertise of the third-party evaluator.
Under Option (2) of this section (Sec. 1926.1428(a)(2)), an
employer's own qualified evaluator (not a third party) would determine
that a signal person meets the qualification requirements. Since such a
determination would not be done by an independent entity, other
employers would not have a basis to assume that the assessment had been
done correctly. Therefore, a qualification under this option would not
be portable; other employers would not be permitted to rely upon it to
show that the signal person meets these requirements.
One commenter argued for the deletion of Option (2) of this section
(the employer option) altogether to ensure that an independent
evaluator trains signalpersons according to the established best
practices of the industry. (ID-0156.1.) The commenter did not explain
why employer evaluations were less effective. To the contrary, the
Agency notes that C-DAC experience indicated that employer evaluations
of signal persons were effective. The employer evaluation may in some
cases be even more effective and efficient than independent
evaluations, such as for the evaluation of employer specific signals.
Sections 1926.1428(a)(1) and (2) (Options (1) and (2)) are promulgated
as proposed.
The term ``qualified evaluator'' used in proposed Sec.
1926.1428(a)(2) was defined in proposed Sec. 1926.1401 as ``a person
employed by the signal person's employer who has demonstrated that he/
she is competent in accurately assessing whether individuals meet the
Qualification Requirements in this subpart for a signal person.'' In
reviewing the C-DAC document, the Agency realized that the Committee
had not provided a definition for the term ``third party qualified
evaluator,'' which was used in proposed Sec. 1926.1428(a)(1). OSHA
therefore added to the proposed rule a definition for this term.
The Agency requested public comment about whether this definition
is appropriate, and two commenters indicated support for the
definition. (ID-0187.1; -0205.1.) One commenter requested that, in the
phrase, ``due to its independence and expertise,'' the Agency add
``history in providing training'' as an additional criterion and
include labor-management joint apprenticeship training programs as an
example of an entity that meets this definition. (ID-0191.1; -0194.1.)
The role of the third-party qualified evaluator in Sec.
1926.1428(a)(2) is to assess the individual's competence. The expertise
needed for training is not the same as the expertise needed for
evaluating competence (see the explanation of the distinction between
training expertise and competence evaluation in the discussion of Sec.
1926.1427). Therefore, it would be inappropriate to require training
expertise as a prerequisite for being considered a third-party
qualified evaluator.\122\ Similarly, while labor-management joint
apprenticeship training programs that train and assess signal persons
would typically meet the definition for a third-party qualified
evaluator, OSHA concludes that including them as an example in the
definition could incorrectly imply that training expertise (as opposed
to assessment expertise) is a prerequisite.
---------------------------------------------------------------------------
\122\ A third party evaluator that did not have signal person
training expertise would nonetheless have to have substantive
expertise in signaling and the other subjects referred to in Sec.
1926.1428, as well as expertise in assessment, to meet the
``expertise'' criterion in the definition.
---------------------------------------------------------------------------
Several other commenters expressed general support for the
definition of a third-party qualified evaluator but requested
clarifications. Two of these commenters proposed changing the
definition to specify that an ``individual'' could also qualify as a
third-party qualified evaluator. (ID-0205.1; -0222.1.) This is
unnecessary because the word ``entity'' already encompasses an
individual. The other commenters recommended that OSHA further clarify
the definition by requiring an evaluating entity to ``demonstrate'' its
competence through an independent body's audit, certification, or
accreditation. (ID-0169.1; -0211.1.) OSHA agrees with C-DAC that
competence can be demonstrated in a variety of ways and is not
establishing an accreditation requirement as for evaluators of crane
operators. The assessment of a signal person's qualifications is
inherently less complex than the assessment of a crane operator's
qualifications because the range of signals and their applications are
more finite than the wide assortment of scenarios and skills for which
a crane operator must be tested. As such, the need for independent
assessment of the evaluator is diminished. Therefore, the Agency has
not made the suggested changes; the definition is promulgated as
proposed except that the defined term is ``qualified evaluator (not a
third party)'' in the final rule.
Another commenter at the hearing, citing the availability of
experienced, trained signal persons in his organization, requested a
``grandfather'' clause for signal persons so that previous training and
proof of hands-on practical experience would qualify signal persons
under this rule, citing the availability of experienced, trained signal
persons in that organization. (ID-0345.17.) OSHA does not agree that a
``grandfather'' clause is necessary or appropriate. The experienced,
trained workers to which the commenter refers should be able to pass
the required assessment with little additional training.\123\
---------------------------------------------------------------------------
\123\ In many cases the only additional training that likely
will be needed for those experienced and trained workers will be to
become familiar with the relevant requirements of Sec. Sec.
1926.1419-1926.1422, and Sec. 1926.1428 (knowledge of that
information is required under Sec. 1926.1428(c)(4)).
---------------------------------------------------------------------------
OSHA concurs with the C-DAC Committee's determination that it is
important for employers to make the documentation of signal person
qualifications readily available to employees and others who need to
rely on those qualifications, such as crane operators who rely on
signal persons provided by a different employer, or OSHA for compliance
purposes. In proposed Sec. 1926.1428(a)(3), OSHA included C-DAC's
language requiring that the documentation be ``available,'' rather than
``available at the site,'' but noted that C-DAC intended that the
documentation be available at the site by, for example, the
documentation being physically present at the site or through use of an
on-site computer. OSHA asked for public comment on changing the term
``available'' to ``available at the site.''
Two commenters objected to the proposed change, indicating that it
is not necessary to have the documentation on site so long as it can be
readily produced. (ID-0205.1; -0222.1.) The commenters did not,
[[Page 48030]]
however, provide further explanation or cite any examples of how the
documentation would be ``readily produced'' quickly through means other
than via computer. Moreover, the commenter's suggestion that documents
be ``readily produced'' is vague and could encompass documents that
might be ``produced'' offsite quickly but not transmitted in a timely
manner to the work site. OSHA has decided to modify the language used
in the proposed rule and require in the final rule that the
documentation be available at the site, and is also adding language to
make it clear that the employer is responsible for making that
documentation available at the worksite.
In the proposed rule preamble, the Agency noted that the C-DAC
draft of Option (2) of this section did not explicitly state that
documentation of the signal person's qualification by this method is
required. However, proposed Sec. 1926.1428(a)(3) stated that ``the
documentation for whichever Option is used shall be available. * * *''
It was not clear to the Agency if C-DAC intended to require
documentation under Option (2) of this section as it did for Option
(1), or if it only intended that any documentation the employer chose
to create under Option (2) would have to be made available.
One reason to require documentation under Option (2) of this
section is the Committee's concern that, at present, the operator's
employer has no ready means of determining if the signal person (who is
typically a different employer's employee) has the necessary knowledge
and skill for signaling until after hoisting operations have begun. In
other words, a problem with the signal person's ability may not become
evident to an operator until a hazardous situation has already arisen.
Requiring documentation enables this determination to be made before
hoisting operations begin.
Requiring documentation under Option (2) of this section addresses
C-DAC's concern. Therefore, in the proposed rule, OSHA expanded the
first sentence of the C-DAC version of Sec. 1926.1428(a)(2) to clarify
that documentation is required under Option (2). The only comment
received on OSHA's inclusion of an explicit requirement for
documentation under Option (2) was from SC&RA, which supported its
inclusion. (ID-0205.1.) Therefore, in the final rule, documentation is
required under Option (2).
The Agency concludes that the rationale for including an explicit
requirement for documentation under Option (2) of this section--the
need for other affected employers at the site, such as the operator's
employer, to have a ready means of determining if the signal person has
the necessary knowledge and skill before beginning hoisting
operations--also necessitates that the documentation be available at
the site. OSHA is concerned that if it is not available at the site
(either in paper form or electronically), it is less likely that the
documentation will serve its intended purpose. Therefore, in the final
rule, the documentation required under both Option (1) and Option (2)
of this section must be available at the site.
OSHA is also adding a requirement in paragraph (a)(3) of this
section of the final rule that the documentation must specify each type
of signaling for which the signalperson has been tested and meets the
requirements of Sec. 1926.1428(c). This requirement parallels the
requirement in Sec. 1926.1427(b)(2) in which operator certification
documents must specify the type and capacity of the equipment for which
an operator is certified. This new provision fills a potential
communication gap that would have existed in the implementation of the
rule as proposed. As explained above, one of the main reasons that OSHA
is requiring the documentation to be available at the site is so that
the operator, or any person on the job site, who is unfamiliar with a
signal person may review that documentation to ensure that the signal
person is sufficiently qualified to provide the signals required for
that job. Because many of the qualifications that must be tested under
paragraph (c) of this section are conditional (e.g., if hand signals
are to be used, the signal person must understand the Standard Method
hand signals), and the proposed rule did not specify any content for
the documentation, the documentation provided by a third-party
qualified evaluator under Option (1) of this section might simply have
generally noted the satisfactory completion of testing in accordance
with Sec. 1926.1428(c). In that case, under the proposed rule, an
operator preparing for a job requiring the use of hand signals would
not have been able to use that documentation as intended to determine
whether the signalperson knew and understood the Standard Method for
hand signals. Under the final rule, the operator will be able to make
that determination quickly because the documentation must specify
whether the signalperson was examined on hand signals. This requirement
is not intended to require significant detail, such as specifying that
the signalperson knows the hand signals for ``hoist'' or ``stop.''
Rather, it is intended to identify satisfactory completion of testing
on different categories of signals, such as hand signals, radio
signals, or flag signals.
Paragraph (b) of this section addresses circumstances in which a
signal person who had been qualified under Sec. 1926.1428(a)
subsequently acts in a manner that indicates that he or she may not
meet the qualification requirements. Such an indication would result,
for example, where the use of Standard Method signals have been agreed
to but the signal person does not give a Standard Method signal.
Another example would be where the signal person gives inappropriate
signals (such as indicating to the operator to boom up when the action
that is needed is to hoist up).
In such circumstances the employer is prohibited from allowing the
individual to continue working as a signal person until he or she is
re-trained and has been requalified in accordance with Sec.
1926.1428(a). No comments were received on this provision; it is
promulgated as proposed.
Paragraph (c) of this section sets forth the qualification
requirements for signal persons. Paragraph (c)(1) requires that the
signal person know and understand whatever signal method will be used
for that particular job site.
In addition, if hand signals are used, the signal person must know
and understand the Standard Method for hand signals. Hand signals are
widely used in this industry. As discussed above with respect to Sec.
1926.1419(c), C-DAC determined that accidents due to miscommunication
could be reduced if there were more widespread use of standardized hand
signals. C-DAC concluded that this provision will promote greater use
of standardized hand signals through the use of the Standard
Method.\124\ No comments were received on this provision; it is
promulgated as proposed.
---------------------------------------------------------------------------
\124\ As discussed above with respect to Sec. 1926.1419(c),
there are circumstances when it would be permissible to use hand
signals other than the Standard Method signals. Also, under Sec.
1926.1419, signals other than hand signals can be used.
---------------------------------------------------------------------------
Paragraph (c)(2) of this section will help prevent miscommunication
between the signal person and the crane operator by requiring the
signal person to be competent in the application of whatever signals
are used. No comments were received on this provision; it is
promulgated as proposed.
Paragraph (c)(3) of this section requires the signal person to have
a basic understanding of crane operation
[[Page 48031]]
and limitations, including crane dynamics involved in swinging and
stopping loads and boom deflection from hoisting loads. As explained in
the proposed rule preamble, it is critical that the signal person
understand how the crane and load will move in response to the various
signals he or she gives so that the signal person will give the most
appropriate signals and reduce the occurrence of struck-by, crushed-by
and other hazards (see 73 FR 59823, Oct. 9, 2008). No comments were
received on this provision; it is promulgated as proposed.
Paragraph (c)(4) of this section specifies that signal persons must
know and understand the relevant requirements in Sec. Sec. 1926.1419-
1926.1422, which address the types of signals that may be used and the
circumstances surrounding their use, and the requirements of Sec.
1926.1428. C-DAC included the phrase ``relevant requirements'' to make
clear that a signal person's qualification could be limited with
regards to the use of a particular type of signal and associated
information.
For example: A crane operation is going to use Standard Method hand
signals. The signal person knows and understands all aspects of Sec.
1926.1419 that are relevant when using hand signals, as well as Sec.
1926.1422, Signals--hand signal chart. In addition, the signal person
meets the requirements in Sec. 1926.1428(c)(1) and (2) with respect to
the use of Standard Method hand signals. The signal person also has the
knowledge necessary to meet the provision in Sec. 1926.1428(c)(3), and
demonstrates through a verbal or written test, and through a practical
test, that he/she has this knowledge and capabilities. However, the
signal person is unfamiliar with the contents of Sec. 1926.1420,
Signals--radio, telephone or other electronic transmission of signals,
or of Sec. 1926.1421, Signals--voice signals--additional requirements.
In this example, it would be appropriate for the signal person to
be qualified under either Option (1) or Option (2) of this section (see
1926.1428(a)) so long as that qualification was limited to signaling
with Standard Method hand signals. Since the signal person would be
qualified only for Standard Method signaling, there would be no need
for that person to have the knowledge or capabilities associated with
other types of signaling. In such a situation employers, though, would
be precluded from using such a person if other types of signals were to
be used. No comments were received on this provision; it is promulgated
as proposed.
Paragraph (c)(5) of this section would require that the signal
person pass knowledge and practical tests to demonstrate that he or she
meets the qualification requirements. The knowledge test may be either
oral or written. C-DAC noted that signal persons normally need not read
or write to perform their jobs effectively. No comments were received
on this provision. Therefore, OSHA agrees with C-DAC that administering
the knowledge test orally, without a separate demonstration of
literacy, should be permitted. The provision is promulgated as
proposed, with one minor grammatical correction.
Section 1926.1429 Qualifications of Maintenance and Repair Workers
This section addresses the qualifications that the workers who
maintain and repair cranes/derricks must possess. Subpart N of this
part at former Sec. 1926.550 contained no provisions concerning the
qualifications of maintenance and repair workers.
The Committee had two basic concerns regarding maintenance and
repair work. First, it was aware of accidents that had occurred when
the equipment that was being maintained or repaired was operated
improperly. For example, a maintenance worker who booms down a mobile
hydraulic crane to one side without following the manufacturer's
instructions for deploying outriggers may overturn the equipment. C-DAC
concluded that placing restrictions on equipment operations during such
work would help prevent such accidents.
Second, the Committee sought to avoid hazards that can result from
maintenance and repair work that is done improperly by ensuring that
maintenance and repair workers are sufficiently qualified to perform
their work. For example, if a load-bearing component is removed for
maintenance or repair and re-installed incorrectly, unintended movement
of the load or even a collapse could occur during operations.
Paragraph (a)
The Committee was aware that maintenance and repair workers
sometimes need to operate equipment to perform maintenance, inspect the
equipment, or verify the performance of the equipment. This work
typically involves operating the equipment to get access to components,
diagnose problems and check repairs.
C-DAC did not determine it necessary for maintenance, inspection
and repair personnel to meet the requirements in proposed Sec.
1926.1427, Operator qualification and certification, when operating
equipment for such purposes. The operations involved for these purposes
are almost always done without a load on the hook. The only instance
when there is a load on the hook is if the equipment is load tested.
However, even when load testing, the operation is very limited, since
the load is not moved about as it would be during normal crane
operations.
While such limited operation does not, in C-DAC's view, necessitate
the maintenance, inspection or repair personnel to meet the proposed
Sec. 1926.1427 requirements, a failure to operate the equipment
properly even in these limited circumstances can result in accidents
from, for example, unintended movement or tip-over. OSHA agrees, and is
therefore permitting maintenance and repair workers to operate
equipment during their work only under specific restrictions designed
to ensure safety.
Specifically, under paragraph (a)(1) of this section, maintenance
and repair workers are permitted to operate the equipment only to the
extent necessary to perform maintenance, inspect the equipment, or
verify its performance. Under this provision, maintenance and repair
workers are not permitted to operate the equipment during regular
operations.
Paragraph (a)(2) of this section requires the maintenance and
repair worker who operates equipment to either (i) do so under the
direct supervision of an operator who meets the requirements of Sec.
1926.1427, Operator qualification and certification, or (ii) be
familiar with the operation, limitations, characteristics and hazards
associated with the type of equipment involved.
Paragraph (b)
In light of the safety hazards that could result from maintenance
and repairs that are performed improperly, C-DAC determined that it was
necessary for maintenance and repair workers to meet the ``qualified
person'' criteria. OSHA agrees. Paragraph (b) of this section therefore
provides that maintenance and repair personnel must meet the definition
of a qualified person with respect to the equipment and maintenance/
repair tasks they perform. As defined in Sec. 1926.1401, a ``qualified
person'' is ``a person who, by possession of a recognized degree,
certificate, or professional standing, or who by extensive knowledge,
training, and experience, successfully demonstrated the ability to
solve/resolve problems relating to the subject matter, the work, or the
project.''
[[Page 48032]]
Two commenters requested that maintenance and repair workers be
certified by a third party. (ID-0061; -0156.1.) As noted in the
preamble to the proposed rule and again here, C-DAC considered the
requirements for maintenance and repair workers and found that the term
``qualified person'' would adequately address these concerns. OSHA
agrees, and is promulgating paragraph (b) without substantive change.
OSHA is substituting the word ``must'' for ``shall'' in the last
sentence of that paragraph to avoid any implication that a maintenance
and repair worker is, by definition, a qualified person.
Section 1926.1430 Training
With a few exceptions, the requirements in this final rule for this
section are the same as those in the proposed rule (see 73 FR 59939,
Oct. 9, 2008). This section both references training criteria required
by other sections of subpart CC and sets forth additional training
criteria and requirements. Additionally, Sec. 1926.1430(h) requires
employers to evaluate employees' understanding of the training.
The Agency determined that both training and testing of certain
employees are critical to the safety of crane/derrick use in
construction.\125\ The requirements of this section and subpart with
respect to training do not replace those established by Sec. 1926.21,
Safety training and education, which requires the employer to (1)
``establish and supervise programs for the education and training of
employers and employees in the recognition, avoidance and prevention of
unsafe conditions in employments covered by the [OSH] Act,'' and (2)
``instruct each employee in the recognition and avoidance of unsafe
conditions and the regulations applicable to his work environment to
control or eliminate any hazards or other exposure to illness or
injury.'' Instead, they supplement and clarify the general training
requirements for particular conditions and activities. These specific
provisions ensure that employees have the necessary knowledge and skill
to work safely with and around cranes. Greater specificity highlights
the particular tasks (and the hazards associated with them) for which
certain types of training are necessary.
---------------------------------------------------------------------------
\125\ With respect to operator testing, as discussed in
connection with Sec. 1926.1427, Operator qualification and
certification, this standard places special emphasis on ensuring
that equipment operators have acquired the knowledge and skills
necessary to operate their equipment safely. This standard also
includes specific assessment requirements for signal persons (see
Sec. 1926.1428(a)).
---------------------------------------------------------------------------
The Agency is also clarifying in Sec. 1926.1430 that employers
have a duty to train each employee covered by subpart CC, and to
provide that training at no cost to the employee. In the introductory
text to proposed Sec. 1926.1430, the Agency specified that the
employer ``shall provide'' all applicable training, which was included
to indicate that the employer would bear the cost of training. This is
consistent with the Agency's treatment of training costs in the
preliminary economic analysis provided in the preamble for the proposed
rule. (See, e.g., 73 FR 59895, Oct. 9, 2008 (operator certification
training treated as cost to employer).) In the final rule, OSHA is
rewording each of the training requirements to further clarify the
employer's responsibilities with respect to all training requirements
under subpart CC, and is adding new Sec. 1926.1430(g)(3) to expressly
state that employers must provide all training at no cost to the
employee.
Several commenters recommended that additional training be
required. (ID-0126.1; -0156.1;-0182.1; -0209.1.) One suggested that
maintenance and repair personnel be certified by either the
manufacturer or an independent third party that they are trained in the
maintenance and repair of the crane. (ID-0156.1.) However, under Sec.
1926.1429(b), maintenance and repair employees are required to be
qualified persons. Those employees must be trained on the requirements
of subpart CC as required by Sec. 1926.1430(d) and must have the
education or experience to be considered a qualified person as defined
in Sec. 1926.1401. This commenter has not presented evidence showing
that manufacturer or third party certification would significantly
improve the qualifications of maintenance and repair personnel who meet
the test of ``qualified person.''
Another commenter felt additional hazard awareness training should
be required for employees. (ID-0182.1.) OSHA determines that the
training requirements of this and other sections of subpart CC, along
with Sec. 1926.21, provide for adequate training of all employees and
allow employers flexibility to provide training as needed for each
employee at various worksites.
Proposed Sec. 1926.1430(a), Overhead powerlines, stated that
employees listed in Sec. 1926.1408(g) must be trained accordance with
the requirements of that paragraph. As discussed in Sec. 1926.1410,
OSHA has added Sec. 1926.1410(m), which requires that operators and
crew assigned to work with equipment that comes closer to power lines
than the minimum clearance distance permitted under Sec. Sec.
1926.1408 and 1926.1409, must also be trained in accordance with Sec.
1926.1408(g). To accommodate this change, Sec. 1926.1430(a) also
includes a reference to Sec. 1926.1410(m).
Under paragraph (b) of this section, Signal persons, employees
assigned to work as signal persons and need training to meet the
requirements of Sec. 1926.1428(c) must be trained in the areas
addressed in that paragraph. As discussed in Sec. 1926.1428(c), each
employee who serves as a signal person must pass a verbal or written
test, and a practical test demonstrating the required knowledge and
skills. One commenter believes the training requirement outlined in
this paragraph could be interpreted to mean that only training is
required and the qualification requirements of Sec. 1926.1428 are not
applicable. (ID-0292.1.) This is incorrect. This paragraph requires an
employer to ensure the employee assigned as a signal person receives
training, or re-training if needed, to be a signal person according to
Sec. 1926.1428. This is not a replacement for the qualification
requirements of Sec. 1926.1428. This provision is promulgated as
proposed except for the clarification of the employer's duty to train
each employee.
Proposed paragraph (c) of this section was entitled Operators, and
set forth training requirements for operators of equipment covered by
this subpart. Proposed Sec. 1926.1430(c)(1) stated that ``operators
who are not qualified or certified under Sec. 1926.1427 shall be
trained in the areas addressed in Sec. 1926.1427(j). * * *''
Several commenters believed that the language of proposed Sec.
1926.1430(c)(1) indicated that operators who have not been qualified or
certified under Sec. 1926.1427 may nonetheless operate cranes. (ID-
0156.1; -0182.1; -0208.1; -0292.1.) One commenter noted it could be
interpreted to mean that certification was not required, only training.
(ID-0182.1.)
Such interpretations are contrary to the Agency's intent. OSHA used
the word ``operator'' in the proposed Sec. 1926.1427(c) to refer to
any employee, with the exception of maintenance and repair workers, who
operates equipment, whether or not that employee has completed all
necessary training. It has the same meaning when used in final Sec.
1926.1427(c).
Proposed paragraph (c)(1) was intended to apply to operator
trainees who must be qualified or certified under Sec. 1926.1427 to
operate equipment, but
[[Page 48033]]
are not yet qualified or certified. Also in this category are employees
who need training to become re-qualified or re-certified, or who failed
to pass a qualification or certification test and need additional
training. Such employees are only permitted to operate cranes under the
conditions specified in Sec. 1926.1427(f), and the proposed rule
required them to be trained in the operator certification/qualification
criteria provided in Sec. 1926.1427(j).
Because the certification and qualification requirements of Sec.
1926.1427 will not be phased in until four years after the effective
date of the standard, see Sec. 1926.1427(k), OSHA specified in the
preamble to proposed paragraph (c)(1) that operator training during
this phase-in period would likewise be required to address the criteria
in Sec. 1926.1427(j) (see 73 FR 59826, Oct. 9, 2008).
To clarify its intent in the final rule OSHA has split proposed
paragraph (c)(1) of this section into three separate paragraphs, (c)(1)
through (3), and renumbered proposed (c)(2) as (c)(4). Revised
paragraph (c)(1) is intended to apply after the four-year phase in
period to employees who must be certified, or qualified, under Sec.
1926.1427 and are training to do so for the first time, and to
employees who are training for re-certification/re-qualification. These
employees, who will only be permitted to operate the equipment as
``operators in training'' and subject to several conditions, must be
trained in the areas addressed in Sec. 1926.1427(j) (criteria for
operator certification testing).
Paragraph (c)(1) also requires employers to provide the necessary
additional training if the operator-in-training does not pass a
qualification or certification test. C-DAC determined, and OSHA agrees,
that it is important for an employer to provide the training necessary
for its operators to be qualified or certified as required by this
subpart.
C-DAC selected the criteria in Sec. 1926.1427(j) as the minimum
knowledge and skill requirements necessary for safe operation of
equipment. OSHA is therefore requiring training in the same areas to
ensure consistency with the certification/qualification process and to
develop the trainee's knowledge and skills in the areas that the record
reflects are critical to the safe operation of equipment.
New paragraph (c)(2) addresses training during the 4-year phase-in
period in the same way for the same people as in paragraph (c)(1): Each
must be trained in the areas addressed in Sec. 1926.1427(j). Although
the certification/qualification requirements do not apply until four
years after the effective date of this standard, OSHA concludes that it
makes sense for two reasons to train employees in the same areas that
they will need to master to pass the certification/qualification
examinations: (1) It will facilitate their preparation for the
examination, and (2) these areas have been identified in the record as
the minimum knowledge and skill sets that all operators should possess.
Paragraph (c)(3) applies to operators of equipment covered by this
subpart but are expressly excepted from the certification and
qualification requirements of Sec. 1926.1427. This includes those
operators for whom the qualification or certification requirements of
Sec. 1926.1427 do not apply based on the type of equipment being
operated. Section 1926.1427(a) provides: ``Exceptions: Operator
qualification or certification under this section is not required for
operators of derricks (see Sec. 1926.1436), sideboom cranes (see Sec.
1926.1440), and equipment with a maximum manufacturer-rated hoisting/
lifting capacity of 2,000 pounds or less (see Sec. 1926.1441).'' For
the same reasons that the Agency has concluded that the operator
certification/qualification criteria in Sec. 1926.1427 are not
appropriate for these operators, the Agency concludes that training on
the same Sec. 1926.1427(j) criteria would also not be necessary.
Instead, these operators, must be trained in the safe operation of the
type of equipment they will be operating.
Proposed paragraph (c)(2) has been renumbered in the final rule as
paragraph (c)(4). Final rule paragraph (c)(4) applies to all persons
operating equipment under subpart CC, regardless of whether that person
must be certified or qualified under Sec. 1926.1427, and regardless of
whether it is during or after the four-year phase-in period, and
requires operators to be trained in two practices that C-DAC deemed
worthy of specific emphasis for the safe operation of any equipment.
Paragraph (c)(4)(i) requires training in the testing of the boom hoist
brake on friction equipment prior to moving a boom off a support to
determine whether the brake requires adjustment or repair. The purpose
of this procedure is to ensure that the brake is sufficient before the
boom is at too great an angle or height. Using this procedure, if the
brake is deficient, the boom will fall only a short distance. This
provides an additional safety measure related to the hazards resulting
from an uncontrolled boom. Moving the boom when the brake is not
working properly can result in uncontrolled lowering of the boom, which
can endanger workers in the proximity of the hoisting equipment.
Paragraph (c)(4)(i) also requires similar training for testing the
brake on all other equipment with a boom. Again, this procedure
provides an additional safety measure related to the hazards resulting
from an uncontrolled boom. For clarity, the Agency has added a
reference to Sec. Sec. 1926.1417(f) and (j) for additional
requirements related to tag-out procedures and communication for any
necessary repairs. See discussion of these requirements above at
Sec. Sec. 1926.1417(f) and (j).
Paragraph (c)(4)(ii) requires the operator to be trained in the
manufacturer's emergency procedures, when available, for stopping
unintended equipment movement. This provides another level of
protection to minimize employee injury resulting from unintended
equipment movement. OSHA recognizes that manufacturer's emergency
procedures for halting unintended equipment movement may not always be
available and therefore this training is required only when the
procedures are available.
One commenter requested that more specialized training, such as
model-specific training, should be required for newly hired operators
or operators assigned to new or different models of equipment. (ID-
0199.1.) OSHA determines that the rule addresses this commenter's
concern. An operator qualified or certified under Sec. 1926.1427 has
shown that he/she is qualified to operate any type of equipment covered
by the qualification/certification. Others must be trained in the type
of equipment they are operating under paragraph (c) of this section.
Paragraph (d) of this section, Competent persons and qualified
persons, requires competent persons and qualified persons to be trained
regarding the requirements of this subpart applicable to their
respective roles.
A person assigned by an employer to be a ``competent person'' or
``qualified person'' under this rule must already have had a certain
level of training (or, in the case of a competent person, either
training or experience) to meet the criteria applicable to such a
designation. This paragraph does not address such training--it does not
require the employer to provide the training needed for an employee to
meet the criteria to become a competent or qualified person. The sole
purpose of this paragraph is to require the employer to ensure that
both competent persons and qualified persons are trained on the
requirements of this subpart applicable to the person's role and
responsibility. For example,
[[Page 48034]]
under Sec. 1926.1430(d), a ``competent person'' assigned to conduct
shift inspections required in Sec. 1926.1412(d) must be trained in the
required elements of a shift inspection. This training is necessary to
ensure that the competent person or qualified person is aware of his/
her role under this subpart regarding finding/correcting hazardous
conditions.
Another example is maintenance and repair personnel, who may
operate equipment under limited conditions necessary to perform the
maintenance or repair (see Sec. 1926.1429(a)). Such an employee must
be a ``qualified person,'' Sec. 1926.1429(b), and must be trained in
accordance with Sec. 1926.1430(d) to operate the equipment as
necessary to perform the maintenance or repair. The Agency notes,
however, that maintenance and repair workers are not considered
``operators'' for the purposes of paragraph (c) of this section and are
therefore not required to be trained in all of the areas addressed in
Sec. 1926.1427(j), or as required under Sec. 1926.1427(c)(3).
No comments were received on this paragraph; it is promulgated
without change from the proposed rule except for the clarification of
the employer's duty to train each employee.
Paragraph (e) of this section, Crush/pinch points, provides that
employees who work with equipment covered by this subpart must be
instructed to stay clear of holes, crush/pinch points and the hazards
that are addressed in Sec. 1926.1424, Work area control. See the
discussion above of hazards and requirements addressed by Sec.
1926.1424. No comments were received on this provision, and it is
promulgated as proposed except for the clarification of the employer's
duty to train each employee.
Paragraph (f) of this section, Tag-out, states that operators and
other employees authorized to start or energize equipment or operate
equipment controls (such as maintenance and repair workers) must be
trained according to the tag-out and start-up procedures in Sec.
1926.1417(f) and (g). See the discussion above of these procedures in
Sec. 1926.1417.
On review of this paragraph, OSHA determines that a reference to
the start-up procedures was inadvertently omitted in the text of the
proposed rule since these employees are ``authorized to start/energize
equipment.'' OSHA has corrected this omission in the final rule by
adding a reference to start-up procedures in Sec. 1926.1417(g) in the
regulatory text.
Paragraph (g) of this section requires employers to ensure that
employees understand the required training and provide refresher
training when necessary. Specifically, Sec. 1926.1430(g)(1) requires
the employee to be evaluated to verify that he/she understands the
information provided in training required by this subpart. The Agency
determined that, to ensure that the training is effective, some means
of assessment for understanding is needed.
One commenter believed this requirement was unclear and did not
understand how an employer would determine if training was effective.
(ID-0232.1.) This commenter also indicated that it could be interpreted
that a test would always be required to determine whether training had
been effective.
The Agency purposely does not use the term ``test'' in this
paragraph. ``Test'' may be interpreted to mean a standardized written
or a structured oral exam, which may not be appropriate for all
situations. OSHA determines the method of evaluating an employee's
training for effectiveness will vary by the subject matter of the
training and the employee, and the Agency has therefore drafted this
paragraph to provide sufficient flexibility for the employer to
determine the most appropriate method of evaluation. Any number of
methods could be used to determine if an employee has understood the
training provided. For example, during assembly/disassembly a certain
method of blocking may be needed. The supervisor trains and instructs
the employee on the proper method. The supervisor can then evaluate the
employee's comprehension of training in a number of ways. One way could
be simply to ask the employee to orally describe how he/she would do
this task, or to have the employee physically emulate the blocking
method. Another would be to provide blocking to the employee and ask
the employee to arrange the blocking in the proper manner. Either
method can give the supervisor the necessary information to determine
if the employee understood the proper method or if additional training
is required.
Another commenter recommended the incorporation by reference of
ANSI/ASSE Z490.1-2001 for how to test trainees. (ID-0178.1.) Much of
sec. 6.2 of that standard reflects the same concepts referred to above
and may be useful to employers. However, a ``Note'' to sec. E6.2.2
suggests that self-evaluations may be adequate. OSHA does not conclude
that a self-evaluation is appropriate to meet the requirements of Sec.
1926.1430(g)(1). While other aspects of the ANSI/ASSE standard may be
useful as a guide to employers, it is not drafted in a way that is
suitable for enforcement of this provision. For these reasons, OSHA
declines to incorporate it by reference as a requirement.
Paragraph (g)(2) of this section requires the employer to provide
refresher training for an employee when, based on evaluation or
employee conduct, it is indicated that retraining is needed.
One commenter recommended a requirement for a minimum number of
continuing education courses each year for employees. (ID-0209.1.)
Another commenter recommended that refresher training be done every 3
years or earlier when based on evaluation of employee conduct. (ID-
0182.1.)
The Agency finds these comments to be unpersuasive. As proposed,
the employer is required to retrain an employee based on the
individual's conduct. OSHA determines this promotes a more effective
retraining requirement than one based on time or type of coursework.
Therefore, paragraphs (g)(1) and (2) of this section are
promulgated as set forth in the proposed rule. As noted above, the
Agency is adding new paragraph (g)(3) to clarify that employers are
responsible to provide the training required under subpart CC at no
cost to employees.
The following chart summarizes the location of the training
requirements in the final rule:
------------------------------------------------------------------------
Section Training requirement
------------------------------------------------------------------------
Sec. Sec. 1926.1408(g) and Power line safety.
1926.1410(m).
Sec. 1926.1424(a)(2)................. Swing radius hazards.
Sec. 1926.1437(c)(2)(ii)............. Swing radius hazards (floating
cranes & land cranes on
barges).
Sec. 1926.1430(e).................... Crush/pinch points (Work Area
Control).
Sec. 1926.1430(f).................... Tag-out.
Sec. 1926.1430(f).................... Start-up.
Sec. 1926.1430(d).................... Competent and Qualified
Persons.
Sec. 1926.1430(g)(2)................. Refresher training (general).
[[Page 48035]]
Sec. 1926.1430(b).................... Signal person training
(equipment with greater than
2,000 pound maximum rated
capacity).
Sec. 1926.1428(b).................... Signal person re-training.
Sec. 1926.1427(f).................... Operator-in-training.
Sec. Sec. 1926.1427(k), Operator training during
1926.1430(c)(2) and transitional period.
1926.1430(c)(4).......................
Sec. 1926.1430(c)(3)................. Operator training for equipment
where qualification or
certification is not required
by this subpart.
Sec. 1926.1430(c)(1)................. Operator training for
qualification or
certification.
Sec. 1926.1430(c)(4)(i).............. Operator training--boom hoist
brake test.
Sec. 1926.1430(c)(4)(ii)............. Operator training--emergency
procedures (halting unintended
movement).
Sec. 1926.1441(e).................... Operator training (2,000 pound
maximum rated capacity).
Sec. 1926.1441(f).................... Signal person training (2,000
pound maximum rated capacity).
Sec. 1926.1423(k).................... Fall protection training.
------------------------------------------------------------------------
Section 1926.1431 Hoisting Personnel
This section of the final rule sets forth additional requirements
when equipment is used to hoist employees. Because equipment covered by
this subpart is designed to move materials, not personnel, additional
requirements are necessary for employee safety. This section replaces
the requirements of subpart N, former Sec. 1926.550(g). Those
requirements have been effective in reducing accidents and as a result
most of the requirements have been continued in this rule. However,
while continuing most of the hoisting personnel requirements that were
in subpart N, subpart CC clarifies requirements where needed and has
added requirements for certain activities, such as hoisting personnel
in a drill shaft, as discussed below. With a few exceptions, the
requirements in this final rule are the same as those found in the
proposed rule (see 73 FR 59714, 59939-59943, Oct. 9, 2008). The
following discussion will primarily focus on the differences between
the proposed rule and this final rule.
OSHA stresses the provisions in this section are additional
requirements that must be met when equipment is used to hoist
personnel. During such use, all other applicable requirements of this
subpart must be met.
Paragraph (a)
This paragraph states that equipment may be used to hoist personnel
only when all other means of reaching the work area present a greater
hazard or is not possible because of the project's structural design or
worksite conditions. It reflects OSHA's longstanding recognition that
using cranes and derricks to lift personnel is inherently hazardous and
should only be done when it is either the least hazardous means or
when, in light of the configuration of the worksite, it is the only
means of performing required work.
This paragraph does not apply to work covered by 29 CFR part 1926
subpart R, Steel Erection. Subpart R, at Sec. 1926.753(c)(4), allows
the use of equipment to hoist personnel in a platform that complies
with subpart CC without the need for a showing that other means of
reaching the work area would create a greater hazard or is impossible.
OSHA's reasons for including this exception in subpart R are discussed
in detail in the preamble to the steel erection standard (66 FR 5196,
5209, Jan. 18, 2001).
One commenter asserted that employers engaged in work covered by 29
CFR part 1926 subpart V, Power Transmission and Distribution, should be
allowed to use equipment (with a boom attached platform) to hoist
personnel without showing that other means of reaching the work area
creates a greater hazard or is not possible. (ID-0144.1.) This
commenter bases this assertion on the premise that many manufacturers
offer a platform specifically designed to attach to the tip of the boom
which may include platform mounted controls. The commenter believes
that when using this type of platform, the equipment ``essentially
transforms the crane into a large aerial lift.''
The Agency finds this comparison unpersuasive. As stated above,
equipment covered by this section is primarily designed for hoisting
materials, not people. C-DAC concluded that it was important to
differentiate between equipment primarily designed for moving
personnel, such as an aerial lift, as compared to equipment that is
primarily designed to lift materials. In the judgment of the Committee,
a personnel platform attached to equipment covered by this section
presented a greater hazard than a machine that is designed for moving
personnel. Therefore, the proposed rule would have required an employer
to show that another means of reaching the work area presents a greater
hazard or is not possible. OSHA agrees, and is retaining the same
substantive requirement in the final rule.
Upon review of this provision, the Agency realized the use of the
word ``worksite'' in the phrase, ``conventional means of reaching the
worksite'' could be misleading. The Agency has changed the phrase to
``conventional means of reaching the work area.'' The term worksite
could be interpreted to mean the entire construction worksite. This
requirement is about an employee working in a particular area or place
on a larger worksite. OSHA finds the use of the phrase ``work area'' to
provide greater clarity. Therefore, the provision is promulgated as
proposed incorporating this terminology change.
Paragraph (b) Use of Personnel Platform
Paragraph (b)(1) of this section generally requires the use of a
personnel platform when hoisting employees and requires that criteria
specified in Sec. 1926.1431(e) be met for such platforms. Paragraph
(b)(2), Exceptions, sets forth the construction activities in which
hoisting personnel without using a personnel platform is allowed. These
activities are: hoisting employees into and out of drill shafts 8 feet
and smaller in diameter, pile-driving operations, marine worksites,
storage tanks (steel or concrete), shaft operations and chimney
operations. OSHA considers the use of a personnel platform in these
situations to be generally infeasible or more hazardous than other
means. This section contains specific requirements for hoisting
personnel during these operations at Sec. Sec. 1926.1431(o), (p), (r),
and (s), including alternatives to the use of a personnel platform.
Each of the exceptions is discussed below under the particular
paragraph related to that operation.
No comments were received on Sec. 1926.1431(b); it is promulgated
as
[[Page 48036]]
proposed except that ``must'' replaces ``shall'' to ensure that the
sentence is imperative, not merely descriptive.
Paragraph (c) Equipment Set-Up
This paragraph sets forth the basic criteria for equipment set-up
for personnel hoisting.
Paragraph (c)(1) of this section requires the equipment to be on
level, firm and stable footing. A qualified person must determine if
the footing is ``sufficiently firm and stable.'' Stable footing is
essential to minimize the hazard of the equipment tipping while
hoisting personnel. C-DAC determined that the danger of the equipment
potentially tipping when hoisting personnel justifies the need for a
qualified person to examine and approve the equipment's stability. OSHA
agrees.
Paragraph (c)(2) specifies that each outrigger must be both
extended and locked. The amount of extension must be the same for all
outriggers and also be in accordance with the manufacturer's
specifications. Proper placement and deployment of outriggers, C-DAC
concluded, is essential to prevent the hazard of equipment tipping
while hoisting personnel.
Equal extension of outriggers eliminates the hazard of the operator
forgetting that one or more outriggers has a shorter extension and
swinging into that area with a load that exceeds the crane's capacity.
The essential factor is to have each outrigger extended equally within
the manufacturer's specifications and procedures, whether it is a full
or partial extension. No comments were received on Sec. 1926.1431(c);
it is promulgated as proposed.
Paragraph (d) Equipment Criteria
This paragraph sets forth requirements for the equipment used to
hoist personnel.
Paragraph (d)(1) of this section, Capacity: Use of suspended
personnel platform, limits the total load to 50 percent of the
equipment's rated capacity and specifies that the total load includes
the hook, load line, and rigging. The 50 percent capacity limit does
not apply during equipment proof testing.
The 50 percent limit reflects C-DAC's conclusion that using this
equipment to hoist personnel requires a greater number of safety
precautions than when lifting materials. The limit provides for an
extra margin of safety to prevent overloading the equipment, which
could cause tip-over or structural collapse.
One commenter asserted that a specific boom limit of not less than
65 degrees should be added to the requirements of this paragraph. (ID-
0178.1.) The commenter did not provide any rationale for this
recommendation. Therefore, OSHA defers to C-DAC's expertise in this
area and is promulgating this provision as proposed.
Paragraph (d)(2), Capacity: Use of boom-attached personnel
platforms, establishes the load limit at 50 percent of rated capacity
for platforms that are attached to the boom. It also provides an
exception to the 50 percent capacity limit during equipment proof
testing. The same reasons for the 50 percent limit in Sec.
1926.1431(d)(1) apply here.
In the proposed rule, OSHA requested public comment on whether
additional requirements (i.e., requirements other than those specified
in the proposed rule for a suspended personnel platform) should apply
when using boom-attached personnel platforms. No comments were received
stating that this type of platform could present an additional hazard
to employees. One commenter stated that this type of platform is safer
than a suspended personnel platform. (ID-0144.1.) Since no comments or
information were received demonstrating that precautions beyond those
already proposed are needed for boom attached personnel platforms, OSHA
has not added any further requirements for this type of platform in the
final rule. Therefore, this paragraph is promulgated as proposed.
Paragraph (d)(3), Capacity: Hoisting personnel without a personnel
platform, establishes the load limit at 50 percent of rated capacity.
In calculating the load, the weight of the personnel, including the
hook, load line, rigging and any other equipment that imposes a load
must be included. No comments were received on this provision; it is
promulgated as proposed.
Paragraph (d)(4) requires engaging all the equipment's locking or
braking devices when the platform has reached its stationary work
position. The purpose is to minimize sudden and unintended movement or
tipping of the platform when employees have reached the work area. No
comments were received on this provision; it is promulgated as
proposed.
The provisions of paragraph (d)(5), Devices, require certain safety
devices for equipment addressed by this section (see 73 FR 59829-59830,
Oct. 9, 2008). OSHA received one comment on Sec. 1926.1431(d)(5)(i),
which stated that a boom angle indicator would not provide useful
information on an articulating crane because such cranes have up to
three boom sections at various angles and numerous combinations of boom
angles will achieve the same lifting capacities. (ID-0206.1.) OSHA
agrees that essential design of the articulating crane precludes the
use of a boom angle indicator. However, to provide some protection
against falling and tipover hazards, OSHA has determined that an
alternative device must be used on articulating cranes when they are
used to hoist personnel. As discussed under Sec. 1926.1400, Scope, the
record indicates that many articulating cranes are equipped with
automatic overload-prevention devices. Such a device provides
protection comparable to that provided by a boom angle indicator, which
helps the operator prevent the crane from becoming overloaded by
providing the boom angle information needed to apply the crane's load
chart. Because overload protection is particularly vital when equipment
is used to hoist personnel, OSHA is addressing the comment about
articulating cranes by adding Sec. 1926.1431(d)(5)(ii), which
specifies that articulating cranes must be equipped with a properly
functioning automatic overload protection device.
No comments were received on the remaining provisions of paragraph
(d)(5); they are promulgated as proposed, except that Sec. Sec.
1926.1431(d)(5)(ii)-(vi) have been renumbered as Sec. Sec.
1926.1431(d)(5)(iii)-(vii) because of the addition of new Sec.
1926.1431(d)(5)(ii). Additionally, with respect to paragraph
(d)(5)(vii), the following has been added: ``(See Sec. 1926.1417 for
tag-out and related requirements.)'' This sentence has been added to
ensure the reader is aware of the applicable tag-out and related
requirements of Sec. 1926.1417, Operation.
Paragraph (d)(6) prohibits the use of a personnel platform directly
attached to a luffing jib. In the experience of C-DAC members, a
complete prohibition of use of a boom-attached personnel platform to a
luffing jib was necessary in light of the range of motion of a luffing
jib and the fact that boom-attached personnel platforms are not
designed for attachment to a luffing jib. Thus, only a suspended type
personnel platform may be used on a luffing jib. OSHA defers to the
expertise of the Committee. No comments were received on these
provisions; they are promulgated as proposed.
Paragraph (e) Personnel Platform Criteria
This paragraph establishes the minimum criteria for a personnel
platform. Paragraph (e)(1) of this section requires that both the
platform and its
[[Page 48037]]
attachment/suspension system be designed by a qualified person who
understands structural design and be designed for the particular
function of personnel hoisting. The purpose of this paragraph is to
clearly stipulate that the platform must be designed for employee
safety. This addresses the hazards of structural failure of the
platform, failure of the attachment/suspension system, and precludes
the use of designs that would be inappropriate for hoisting people.
Paragraph (e)(2) requires the system used to connect the personnel
platform to the equipment to be within 10 degrees of level. This
addresses the hazard of platform tipping by maintaining the platform
close to level.
Paragraph (e)(3) requires the platform designer to consider the
movement of employees on the platform and design the suspension system
to minimize platform tipping from such movement. The purpose is to
design the platform in such a way as to limit the likelihood of
platform tipping while employees are working from the platform.
Paragraph (e)(4) requires the platform to support its own weight
plus a minimum of five times the maximum intended load without failure.
C-DAC selected this minimum limit because it would provide an adequate
margin of safety for employee protection from structural failure of the
platform. The guardrail system and personal fall arrest system
anchorages are not subject to this requirement but instead are subject
to Sec. 1926.1431(e)(6).
Paragraph (e)(5) requires that welding of any part of the platform
or its component parts be performed by a welder who is certified and
familiar with the weld grades, types and material specified in the
particular platform's design. This requirement is designed to prevent
structural failure of the platform due to improper welding.
Paragraph (e)(6) details the requirements of the platform for
guardrails, fall arrest anchorage points and enclosure of the platform
between the toeboard and mid-rail. Proper guardrails and fall arrest
anchorage points are critical fall protection devices, and the required
platform enclosure is needed to protect employees below from falling
objects. In addition, points to which personal fall arrest systems are
attached must meet the anchorage requirements in 29 CFR part 1926
subpart M.
Paragraph (e)(7) requires the placement of a grab rail within the
entire perimeter of the personnel platform except for access gates/
doors where a grab rail can be impractical. The grab rail provides a
place for the employee to hold onto while in the platform instead of
using a guardrail as a hand hold. Using a guardrail as a hand hold
exposes the employee's hand to being smashed by external objects.
No comments were received on paragraphs (e)(1) through (e)(7); they
are promulgated as proposed.
Paragraphs (e)(8)(i) and (ii), Access gates/doors, specifies that
access gates/doors must be designed to not swing outward and must also
have a mechanism that will keep the gate/door from being opened
unintentionally.
One commenter, a platform manufacturer, stated that generally their
platforms have doors that do not swing outward. (ID-0238.1.) However,
for certain custom platforms, such as a one-person platform, the size
and design of the platform makes it unsafe for a person to enter the
platform and close the gate behind the occupant when it is an inward
swinging gate. The commenter indicated that for this type of platform,
the gates are designed to swing outward to provide safe access for the
individual. To protect against accidental opening of the gate, a
positive latching system is included with an outward swinging gate.
The Agency agrees that certain types of personnel platforms could
be of a size or configuration that would necessitate an outward
swinging access gate or door to allow for safe entry and egress of an
occupant. Therefore, OSHA has revised this paragraph to include an
exception for this type of platform. When it is infeasible to have an
inward swinging gate due to the size or design of the platform, the
gate can swing outward. However, the additional feature of a positive
latching or similar system that prevents accidental opening must be
included. This conforms with the intent of this requirement to prevent
an occupant from falling from the platform due to an access gate or
door opening unexpectedly.
Paragraph (e)(9) requires adequate headroom to allow employees to
stand upright in the personnel platform. This provides adequate space
for the employee to work from the platform while keeping his/her entire
body within the platform, and contributes to greater stability during
platform movement. No comments were received on this provision; it is
promulgated as proposed.
Paragraph (e)(10) requires an overhead protective cover attached to
the platform when an employee is exposed to falling objects. It
mandates the overhead cover of the platform to be of such material and
design to provide visibility for both the operator and the employees on
the platform, while maintaining adequate protection from falling
objects. The reference to a wire mesh with \1/2\ inch openings is an
example of a type of material and design that could be used for the
platform cover. The nature of the worksite conditions and likely type
of falling objects determines the type of material and design needed to
protect the platform occupants. Full overhead protection (i.e., no
visibility through the protective cover) is allowed when conditions are
such that a full protective cover is necessary to protect employees
from falling objects.
Paragraph (e)(10) explicitly states that the protection provided by
the cover is supplemental to the protection provided by hard hats--the
use of hard hats does not obviate the requirement for the platform
cover.
One commenter noted that having overhead protection for employees
in the power line industry interferes with the ability to work
overhead, which is a routine occurrence. (ID-0144.) Additionally, at
the public hearing, a representative from a labor union noted that
typically an overhead cover would not be used on a personnel platform
when they are working near power lines, as it is desirable to minimize
the amount of conductive material. (ID-0344.) The Agency acknowledges
that it is common for those in the power line industry to work
overhead. However, the use of a personnel platform attached to a crane
is not the only means of reaching this work location. As noted in Sec.
1926.1431(a), the use of a personnel platform attached to a crane is
only permitted where the employer demonstrates that conventional means
of reaching the worksite, such as an aerial lift, would be either more
hazardous or impossible. OSHA notes that aerial lifts are commonly used
in utility work, and it therefore determined that crane-suspended
personnel platforms will be used rarely in such work. OSHA also notes
that paragraph (e)(10) mandates overhead protection only when an
employee is exposed to falling objects, and that should not be a common
occurrence in utility work. Therefore, the Agency does not determine
that this provision needs to make special accommodation for work near
power lines. Paragraph (e)(10) is promulgated as proposed.
Paragraph (e)(11) requires that all edges of the platform be smooth
enough to prevent injury. The purpose is to protect the employee from
injuries such as lacerations and puncture wounds.
Paragraph (e)(12) requires conspicuous posting of a plate or other
permanent written notice on the personnel platform listing the weight
of
[[Page 48038]]
the platform itself and the platform's rated capacity. The purpose of
the provision is to make employees aware of the platform's limits to
prevent overloading, which could result in structural failure of the
platform or equipment, and to facilitate compliance with Sec.
1926.1431(f)(1), which prohibits loading the platform in excess of its
rated capacity.
No comments were received on paragraphs (e)(11) or (e)(12); they
are promulgated as proposed.
Paragraph (f) Personnel Platform Loading
Paragraph (f)(1) of this section prohibits loading the platform in
excess of its rated capacity.
Paragraph (f)(2)(i) requires the platform to be used exclusively
for personnel hoisting and not for hoisting materials. However, it does
allow the necessary materials and tools for the work activity to be
hoisted along with the employees. Using a personnel platform to hoist
materials can lead to damage of the platform due to materials shifting
or excessive loading. This can subject the platform to structural
stresses that may not be visible and contribute to platform structural
failure.
Paragraph (f)(2)(ii) provides an exception to paragraph (f)(2)(i)
to allow materials and tools on the personnel platform during the trial
lift as long as the materials/tools are properly secured and
distributed as specified in Sec. 1926.1431(f)(3).
Paragraphs (f)(3)(i) and (ii) require that any materials and tools
that are on the platform during the hoist be secured, and evenly
distributed within the platform itself while the platform is suspended.
These precautions are designed to prevent platform tipping and injury
to employees due to movement of materials or tools during the hoist.
OSHA concludes that the combination of paragraphs (f)(2)(ii) and (f)(3)
strikes the appropriate balance by accommodating the practical
requirements of the job while reducing the potential for overloading.
No comments were received on paragraphs (f)(1) through (f)(3); they
are promulgated as proposed.
Paragraph (f)(4) limits the number of employees on a personnel
platform to the lesser of either the number needed to perform the work
or the maximum number for which the platform was designed. The purpose
is to expose the fewest possible number of employees to the hazards
presented when hoisting personnel and to minimize the load on the
platform to the extent possible.
One commenter stated that boom attached personnel platforms should
be limited to a maximum of 4 employees. (ID-0178.1.) Because no reason
was provided to support this requirement, OSHA has not changed the
requirement that the maximum number of employees on a platform is
limited to the lesser of the number the platform was designed to hold
or the number required to perform the work. Therefore, paragraph (f)(4)
is promulgated as proposed.
Paragraph (g) Attachment and Rigging
Paragraph (g)(1) of this section establishes the requirements for
the device used to connect the personnel platform to the hoist line.
The nature and type of connector used is critical to the overall
safety of the suspended personnel platform. Under this paragraph, a
hook used to connect the hoist line and personnel platform must be the
type that can be closed/locked and must be closed/locked when attached
to the platform. When a shackle is used in lieu of a hook, it must be
of the alloy anchor type with either: A bolt, nut and retaining pin in
place; or: The screw type with the screw pin secured against accidental
removal. Any detachable device other than a shackle or hook that is
used must be closable and lockable to the same extent a hook or shackle
would be when in compliance with this section. When used to connect the
personnel platform, such a device must be closed and locked to ensure
that the platform is secured to the hoist line.
Paragraph (g)(2) requires that each bridle leg in a rope bridle be
connected to the master link/shackle in a manner that allows the
platform's load to be equally distributed among each bridle leg. The
purpose of this type of attachment is to avoid platform tipping.
Paragraph (g)(3) requires that all hardware used for rigging must
be able to support five times the maximum intended load applied to or
transmitted to that component. Additionally, slings using rotation
resistant rope must have a safety factor of ten. These measurements
continue the requirements that were in former Sec.
1926.550(g)(4)(iv)(C).
Paragraph (g)(4) requires the eyes in wire rope slings to be
fabricated with thimbles. The purpose of this requirement is to prevent
excessive wear to the eyes and possible failure of the platform's
rigging.
No comments were received on paragraphs (g)(1) through (g)(4); they
are promulgated as proposed with minor grammatical clarifications.
Paragraph (g)(5) requires that bridles and rigging used to suspend
the personnel platform be used exclusively for hoisting personnel
operations. Rigging components must be dedicated for the sole use of
personnel hoisting to help ensure that they are not damaged. Materials
hoisting can lead to damage of the rigging components due to material
shifting or excessive loading. This can make the rigging components
susceptible to structural stress that may not be visible, yet
contribute to failure. To clarify that the bridles and rigging used for
hoisting personnel may only be used if they have not ever been used for
other operations prior to being designated for the purpose of hoisting
personnel, OSHA has modified the regulatory text from the proposed rule
to state that the bridles and rigging ``must not have been used for any
purpose other than hoisting personnel.''
Paragraph (h) Trial Lift and Inspection
Paragraph (h)(1) of this section requires a trial lift without
occupants and with the platform loaded to at least the anticipated
liftweight. The purpose of the trial lift is to confirm that: The lift
set-up works properly; the lift route is free of obstacles; the work
location is accessible; no work location will place the crane or
derrick in such a configuration where the intended load would exceed 50
percent of the equipment's rated capacity; the soil or other supporting
surface is stable; and that the lift route is suitable for the intended
lift. The path of the trial lift must begin at the point the employees
enter the platform and end at the ultimate location the platform is
being hoisted to and positioned (end point). When there are multiple
destination locations from a single set-up point, the trial lift must
be conducted in one of two ways.
First, individual lifts may be conducted in which the platform is
moved to one of the end points from the starting point, returned to the
starting point, moved to a second end point, again returned to the
starting point, and the process repeated until each end point has been
reached. Alternatively, a single lift may be conducted from the
starting point to all of the end points in sequence, without returning
to the starting point until after the last end point has been reached.
OSHA determined that the phrase ``a single trial lift for all
locations'' in the text of the proposed rule for Sec. 1926.1431(h)(1),
based on C-DAC consensus language, was not sufficiently clear to
describe the intended meaning of this requirement (see 73 FR 59714,
59940-59941, Oct. 9, 2008). In addition, OSHA was concerned that
allowing the trial lift to be conducted in either of these two ways,
irrespective of how the personnel will actually be hoisted, may
[[Page 48039]]
result in the trial lift failing to reveal problems that would be
encountered in the actual personnel lift.
To address these concerns, OSHA suggested language in the preamble
to the proposed rule to clarify that the employer must use a lift path
and sequence of stops in the trial lift that will match the lift path
and sequence of stops when actually hoisting personnel. As noted above,
the purpose is to detect any problems that could arise before personnel
are hoisted. OSHA asked for public comment on these issues and the
suggested language (73 FR 59714, 59833, Oct. 9, 2008).
Two commenters stated that the language in the proposed rule was
sufficient and should not be changed (ID-0205.1; -0213.1); another
commenter stated that the text suggested by OSHA in the preamble to the
proposed rule should be used in the final rule (ID-0104.1). The Agency
concludes this suggested text provides a better description of what
needs to be done to ensure safety--i.e., that the trial lift method
needs to match the actual hoist method. Therefore, the provision in the
final rule includes this suggested language.
Paragraph (h)(2) requires the trial lift to take place immediately
prior to each shift when hoisting personnel, and each time the
equipment is moved and set up in a new location or a previously used
location. This is to ensure that the conditions for the trial lift will
be nearly identical to those of the actual personnel lift.
Additionally, a trial lift must be done each time the lift route is
changed, unless a competent person determines the new lift route does
not present new factors affecting safety.
Paragraph (h)(3) requires a competent person to ensure that all
required safety devices and operational aids required by this section
are activated and properly functioning, that nothing interferes with
the equipment or personnel platform during the trial lift, that the
lift load does not exceed 50 percent of the equipment's rated capacity,
and that the load radius used is accurately determined. These
requirements ensure that necessary safety measures are in place and
validated by a competent person for the trial lift. It is important for
this to be the responsibility of a competent person because such a
person not only has the knowledge necessary to make the determinations,
but also has the authority to take any necessary corrective action.
Paragraph (h)(4) establishes the duties of the competent person
immediately after the trial lift. It requires the competent person to
conduct a visual inspection of the personnel platform and equipment to
determine if there is any problem or defect resulting from the trial
lift or if it produced any adverse effect. In addition, the competent
person must ensure that the test weight used during the trial lift has
been removed prior to personnel loading.
The purpose of these requirements is to ensure that any defects in
the equipment, base support, or ground and personnel platform, revealed
by the trial lift are seen by a competent person prior to hoisting
personnel. (Note that, under Sec. 1926.1431(h)(6), any condition found
during the trial lift that fails to meet a requirement of this standard
or otherwise constitutes a safety hazard must be corrected before
hoisting personnel.) Paragraph (h)(4) continues the requirements from
former Sec. 1926.550(g)(5)(iv) while adding the requirement that the
competent person ensure that the test weight is removed. This is needed
because overloading the personnel platform can occur if the test
weights are not removed and left on the platform when hoisting
personnel.
No comments were received on Sec. Sec. 1926.1431(h)(2) through
(h)(4); they are promulgated as proposed.
Under paragraph (h)(5)(i), immediately prior to each personnel
lift, the competent person must inspect the platform while it is lifted
a few inches to ensure that the platform is secure and properly
balanced.
The purpose of this procedure is to ensure that, with the occupants
and materials/tools to be hoisted on the platform immediately before
the hoist is to take place, the platform is secure and properly
balanced. The purpose of having the occupants and materials/tools on
board during this check is twofold. First, it ensures that the check
takes place just before the personnel lift, which minimizes the chance
that damage or other problems affecting the platform's security will
occur after the check. In addition, it would be difficult to ensure
that the platform will be properly balanced when in actual use without
having the employees and materials/tools on board.
In the proposed rule, the text did not state that personnel and
materials were to be on board during the trial lift (see 73 FR 59941,
Oct. 9, 2008). In the preamble to the proposed rule, the Agency asked
for comment on adding the phrase ``with the personnel and materials/
tools on board'' to clarify the intent of this requirement (see 73 FR
59833, Oct. 9, 2008).
Three comments were received in response to the Agency's request
for comment on this issue. (ID-0104.1; -0205.1; -0213.1.) All three
commenters agreed with the Agency's suggested revision. Therefore, the
final rule reflects this change in Sec. 1926.1431(h)(5)(i).
Paragraph (h)(5)(ii) requires a competent person to determine that
hoist ropes are free of defects, that multiple part lines are not
twisted around each other, and that the primary attachment is centered
over the platform. If the load rope is slack, the competent person must
inspect the hoisting system to ensure the rope lines are properly
seated on drums and in sheaves. Paragraphs (i) and (ii) continue the
requirements from former Sec. 1926.550(g)(5)(iii), with the additional
clarification that hoist ropes must be free of deficiencies (that is,
not just free of ``kinks,'' as was required in former Sec.
1926.550(g)(5)(iii)(A)). The purpose of these requirements is to
mandate an additional final review by a competent person to evaluate
the personnel platform, the balance of the load, and the lifting
devices to ensure that necessary safety requirements are met.
No comments were received on Sec. 1926.1431(h)(5) (ii); it is
promulgated as proposed.
Paragraph (h)(6) establishes that any condition that fails to meet
the requirements of this standard or otherwise creates a safety hazard
must be corrected before personnel are hoisted. This includes
conditions found during the trial lift or in any inspection or
subsequent review of the equipment, platform or rigging. No comments
were received for this provision. However, the following reference has
been added to this provision for clarification: ``(See Sec. 1926.1417
for tag-out and related requirements.).'' This sentence has been added
to ensure the employer is aware of the applicable tag-out and related
requirements of Sec. 1926.1417, Operation.
Paragraph (i) [Reserved.]
Paragraph (j) Proof Testing
This paragraph delineates the requirements of and method for proof
testing the personnel platform and rigging. It requires the proof test
to be done at each jobsite prior to hoisting personnel and after any
repair or modification of the platform. The proof test must be at 125
percent of the platform's rated capacity with an evenly distributed
test load. The platform must be lowered by controlled load lowering,
braked, and held in a suspended position for at least five minutes.
After this proof test, the competent person must inspect the platform
and rigging to determine if it has passed the proof test. If not, all
deficiencies that pose a safety hazard must be corrected and another
proof test performed. The competent
[[Page 48040]]
person must determine that the platform and rigging have successfully
passed the proof test before any personnel hoisting begins.
The purpose of this paragraph is to determine if the structural
integrity of the personnel platform is intact or if it has been
affected by any condition, damage, repair or modification which could
result in structural failure or other safety hazards from the platform
or rigging. This ensures the load lowering and braking mechanisms are
functioning properly before personnel are lifted. In addition, Sec.
1926.1431(j)(3) clarifies that only deficiencies that present a safety
hazard need be corrected; minor deficiencies bearing no relation to
safety do not need to be corrected.
In addition, the Agency is adding a reference to the requirements
of Sec. 1926.1417, Operation, to ensure the reader is aware of the
applicable tagout and startup requirements of Sec. 1926.1417,
Operation. Paragraph (j)(3) of this section is otherwise promulgated as
proposed.
One commenter stated that proof testing should not be required for
boom attached personnel platforms, since there is no rigging and a
simple visual inspection of the mounting hardware would be sufficient.
(ID-0144.1.)
OSHA disagrees with this comment. The purpose of this proof test is
to ensure the sufficiency and integrity of the system that will be
hoisted by the crane/derrick. In the case of a suspended platform, that
system consists of the platform and the rigging that attaches it to the
crane/derrick. In the case of a boom-attached platform, that system
consists of the platform with its boom-mounting hardware (in such cases
OSHA considers the boom-mounting hardware part of the platform itself).
Therefore, even when rigging is not used, the proof test still needs to
be performed to help ensure the adequacy of the platform, including its
attachment system.
Therefore, Sec. Sec. 1926.1431(j)(1), (2) and (4) are promulgated
as proposed.
Paragraph (k) Work practices
Paragraph (k)(1) of this section requires hoisting the personnel
platform in a slow, controlled, cautious manner, with no sudden
movements of the equipment or platform. This precaution minimizes the
likelihood of platform tipping, loss of footing, and loss of control of
the platform by the operator during hoisting.
Paragraph (k)(2)(i) requires that all occupants of the personnel
platform keep all parts of the body inside the platform while it is
being raised, lowered or moved horizontally. This does not apply when a
platform occupant must position the platform. Additionally, this does
not apply when a platform occupant is performing the duties of a signal
person. The purpose of this requirement is to prevent an employee from
having a body part struck by or caught in between the personnel
platform and another object.
Paragraph (k)(2)(ii) prohibits platform occupants from standing on,
sitting on, or working from any surface other than the floor of the
personnel platform during hoisting or when working from the platform.
It prohibits working from a railing or toeboard or the use of any means
or device to raise the employee's working height. The purpose is to
ensure that the occupants benefit from the protections of the guardrail
system and do not destabilize the platform.
Paragraph (k)(2)(iii) prohibits platform occupants from pulling the
platform out of plumb in relation to the hoisting equipment. The
purpose is to prevent tipping of the platform with employees on board,
which could exacerbate the fall hazard.
Paragraph (k)(3) requires a personnel platform that is not landed
to be secured to the structure, before employees enter or exit the
platform, to prevent dangerous movement of the platform at these times,
which could exacerbate the fall hazard or cause an employee's body part
to be struck by or caught in between the personnel platform and the
structure. Paragraph (k)(3) allows an exception when a greater hazard
is created by securing the platform to the structure.
Paragraph (k)(4) requires the operator to receive confirmation that
the platform is no longer tied to the structure and is freely suspended
before the operator moves the platform. This requirement prevents
structural damage to the platform and/or rigging and prevents the fall
hazard that could result from pulling the platform out of plumb if
there were an attempt to move it while it is still attached.
Paragraph (k)(5) requires the use of tag lines when necessary to
control the personnel platform. The purpose is to provide an additional
way to control platform stability to decrease the risk of injury from
loss of footing or from the platform striking an object.
Under paragraph (k)(6), where the platform is not equipped with any
controls, the equipment operator is required to remain at the equipment
controls at all times while the personnel platform is occupied. Because
there are no controls in the personnel platform, the equipment operator
must be available to make any necessary adjustments to protect the
employees from injury from any condition arising after the platform is
placed at the working location. Paragraph (k)(6) requires the operator
to stay at the equipment controls, and on site and in view of the
equipment, at all times the platform is occupied, whether or not the
crane engine is running. Equipment controls, as discussed here and in
Sec. 1926.1431(k)(7), include remote controls that are used to control
the boom and swing functions of the equipment. This subpart does not
prohibit the use of remote controls for equipment by an operator. See
discussion of the use of remote controls at the preamble for Sec.
1926.1417(e)(1). The Agency has added the ``on site and in view of the
equipment'' requirement in the final rule to address the situation
where the operator uses a remote control to operate the equipment. The
same requirement was included in proposed Sec. 1926.1431(k)(7) to
address the same issue, and is included in final Sec. 1926.1431(k)(7),
as discussed below.
No comments were received on paragraphs (k)(1) through (k)(6); they
are promulgated as proposed with the exception of the addition noted
for (k)(6).
Paragraph (k)(7), Platforms with controls, applies when a personnel
platform has controls. Controls on certain personnel platforms enable a
platform occupant to move both the platform and the boom. Other
platform designs enable an occupant to control only the platform/basket
itself, for example, to level the basket as it is boomed up or down.
Paragraph (k)(7)(i) requires the platform occupant using the
platform's controls to be a qualified person with respect to their use,
including the safe lim